ex-HA, USNR

Current Discharge and Applicant’s Request

Application Received: 20120119
Characterization of Service Received:  
Narrative Reason for Discharge:  
Authority for Discharge:  MILPERSMAN 

Applicant’s Request:  Characterization change to: 
		       Narrative Reason change to: 
	
Summary of Service
Prior Service:
Inactive:	USNR (DEP)	20051021 - 20051128  	Active:	

Period of Service Under Review:
Date of Current Enlistment:  20051129	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20081125	Highest Rank/Rate:  HN
Length of Service:   Year(s)     Month(s)   27 Day(s)
Education Level:  	AFQT:  62
Evaluation Marks:	Performance:  3.3 (3)	Behavior:  3.3 (3)	OTA:  3.16

Awards and Decorations (per DD 214):	   w/EGA  FMFEWS

Periods of UA/CONF:  

NJP:  

- 20060428:	Article  (Failure to obey order or regulation) 
	Article 112 (Drunk on duty)
	Article 134 (General article--disorderly conduct, drunkenness) 
	Awarded:     Suspended:  

- 20080725:	Article  (Wrongful use, possession, etc. of controlled substances, marijuana (44ng/ml))
	Awarded:     Suspended:  

SCM:  	SPCM:  	CC:  

Retention Warning Counseling:  

- 20060428:	For violation of Article 92, Failure to obey order or regulation; Article 112, Drunk on duty; Article 134, Disorderly conduct, drunkenness.  

Types of Documents Submitted/reviewed

Related to Military Service:
	DD 214:		Service/Medical Record:		Other Records:	
Related to Post-Service Period:
	Employment:		Finances:		Education/Training:	
	Health/Medical Records:		Rehabilitation/Treatment:		Criminal Records:	
	Personal Documentation:		Community Service:		References:	
	Department of VA letter:		Other Documentation:	
		Additional Statements:
	From Applicant:		From/To Representation:		From/To Congress member:	

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 23, effective 2 June 2008 until 9 November 2009, Article 1910-146, SEPARATION BY REASON OF MISCONDUCT - DRUG ABUSE.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.

DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1.	The Applicant wants to receive benefits offered by the U.S. Department of Veterans Affairs (VA).
2.	The Applicant contends his discharge was too harsh, because the disciplinary infractions that led to the discharge were most likely the result of untreated Post-Traumatic Stress Disorder (PTSD).
3.	The Applicant contends the disciplinary infractions that led to the discharge were most likely the result of his youth and immaturity.
4.	The Applicant contends his discharge was inequitable due to his laudable and honorable combat service.
5.	The Applicant contends his post-service conduct is worthy of an upgrade. 

Decision

Date:  20120913		Location:  Washington D.C.	Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  .

Discussion

As a result of the Applicant’s claim of PTSD, in accordance with U.S. Code, Title X, Section 1553 (d)(1), the Naval Discharge Review Board included a member who is a physician, clinical psychologist, or psychiatrist.  In accordance with section 1553 (d)(2), the service secretary expedited a final decision and accorded the case sufficient priority to achieve an expedited resolution.  The Applicant’s service record documents completion of a deployment to Fallujah, Iraq from July 2007 to February 2008, conducting combat operations in support of Operation IRAQI FREEDOM.  Competent medical authority at the Point Loma Naval Medical Clinic diagnosed the Applicant with PTSD and drug and alcohol dependence in October 2008. 

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted.  In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant’s record of service included  NAVPERS 1070/613 (Page 13) warning and  non-judicial punishments (NJPs) for violations of the Uniform Code of Military Justice (UCMJ): Article 92 (Failure to obey order or regulation, 1 specification), Article 112 (Drunk on duty, 1 specification), Article 112a (Wrongful use, possession, etc. of controlled substance, 1 specification), and Article 134 (General Article, disorderly conduct, drunkenness).  The Applicant  a pre-service drug waiver for using marijuana  prior to entering the Navy.  Based on the Article 112a violation, processing for administrative separation is mandatory.  The NDRB did not have the Applicant’s administrative separation package to determine whether the Applicant waived  rights to consult with a qualified counsel, submit a written statement, and request an administrative board. 

:  (Non-decisional) The Applicant wants to receive benefits offered by the VA.  There is no requirement, or law, that grants re-characterization solely on the issue of facilitating access to VA benefits.  Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge.  Therefore, this issue does not serve to provide a foundation upon which the NDRB can grant relief.  

The Applicant should be aware that the VA has announced special VA enrollment access for PTSD and mental health treatment to combat veterans discharged under other than dishonorable conditions.  Effective Jan. 28, 2008, combat veterans discharged from active duty on or after Jan. 28, 2003 are eligible for combat veteran enhanced eligibility and enrollment placement into Priority Group 6 (unless eligible for higher enrollment Priority Group placement) for 5 years post discharge.  Additionally, the VA determines the eligibility for enrollment in its programs - independent of the Applicant’s characterization of service as determined by the Marine Corps.  The Applicant, as a combat veteran, is encouraged to contact his local VA affairs representative for more information and may request a review of service and determination of benefits from the VA.  Alternately, he may call 1-877-222-8387 or visit the following website for more information: http://www4.va.gov/healtheligibility/Library/pubs/CombatVet/CombatVet.pdf. 

:  (Decisional) ()  .  The Applicant contends his discharge was too harsh, because the disciplinary infractions that led to the discharge were most likely the result of untreated PTSD.  The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service.  Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy.  A preponderance of the evidence reviewed supports the conclusion that the Applicant deliberately used marijuana, even if it was to self-medicate for what he believed were symptoms of PTSD.  When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline.  However, the Board generally does not consider the circumstances surrounding an Applicant’s stated condition, the implied incorrect diagnosis, nor the medical treatment given to the Applicant to be of sufficient nature to exculpate the misconduct.  The NDRB determined that his PTSD did not mitigate his misconduct or that it was a valid reason to wrongfully use controlled substances, especially when the Navy has extensive resources available to service members who are suffering from mental and physical conditions.  According to documentation submitted by the Applicant, he was aware that he was having trouble coping with the traumatic events he experienced in Iraq, yet he chose to use an illegal substance.  Furthermore, documentation provided by the Applicant indicates that he did not request to be admitted into a treatment program for drugs and alcohol until after he learned he had tested positive for marijuana.  Relief denied.

:  (Decisional) ()  .  The Applicant contends his discharge was too harsh, because the disciplinary infractions that led to the discharge were most likely the result of his youth and immaturity.  The NDRB recognizes that many of our service members are young at the time they enlist for service, however, most still manage to serve honorably.  While some members may be less mature than others are, the NDRB does not view a member’s claim of youth and immaturity to be a mitigating factor or a sufficient reason for misconduct.  Relief denied.

:  (Decisional) ()  .  The Applicant contends his discharge was inequitable due to his laudable and honorable combat service.  Despite a service member’s prior record of service, to include combat service, certain serious offenses warrant separation from the Navy to maintain proper order and discipline.  Violation of Article 112a is one such offense requiring mandatory processing for administrative separation regardless of performance, grade, combat service, or time in service. Wrongful use of controlled substances usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge, and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial.  At NJP proceedings, the Applicant was found guilty of violating Article 112a of the UCMJ.  His command did not pursue a punitive discharge, but opted instead for the more lenient administrative discharge.  Therefore, the NDRB is convinced that his command did consider his total record of service (including combat service and a pre-Iraq NJP for failure to obey an order or regulation, drunk on duty, and disorderly conduct), as well as any matters of extenuation and mitigation, and still concluded that his marijuana use was significant enough to warrant separation with an Under Other Than Honorable Conditions characterization of service.  Relief denied.

Issue 5:  (Decisional) ()  .  The Applicant references the improvements he has made in his life after a rough start in civilian life following his discharge from the Navy, particularly his full-time employment, college attendance, and his two years of sobriety and being drug free.  The NDRB considers outstanding post-service conduct to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  The Applicant provided a personal statement and two character references that mention the improvements he has made in his life.  To warrant an upgrade, the Applicant’s post-service efforts need to be more encompassing.  The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum with the understanding that completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration.  The Board determined that the documentation submitted by the Applicant was not enough to demonstrate whether his in-service misconduct was an aberration.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service,  record entries, and discharge process, the Board found   Therefore, the awarded characterization of service shall   and the narrative reason for separation shall remain .  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of  discharge.  The Applicant is directed to the Addendum for more information.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  You should read Enclosure (5) of the Instruction before submitting such a complaint.  The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness.  You may view DoD Instruction 1332.28 and other Decisional Documents by going online at “http://Boards.law.af.mil.”

Additional Reviews:  After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge.  Representation at a personal appearance hearing is recommended but not required.  There are veterans organizations such as the American Legion and the Disabled American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review.

Service Benefits:  The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  There is no requirement or law that grants recharacterization solely on the issue of obtaining veterans benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

Employment/Educational Opportunities:  The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code:  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  Only the BCNR can make changes to reenlistment codes.  Additionally, the NDRB has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

Medical Conditions and Misconduct:  DoD disability regulations do not preclude a disciplinary separation.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board, and is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable discharge is authorized, the medical board report is filed in the member’s terminated health record.  Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons.  Only the BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct:  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  Outstanding post-service conduct, to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review, is considered during Board reviews.  Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle.   The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate  in-service misconduct was an aberration and not indicative of the member’s overall character.

Issues Concerning Bad-Conduct Discharges (BCD): Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief.  With respect to a discharge adjudged by a special court-martial, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership:  The names and votes of the members of the NDRB Board are recorded on the original of this document and may be obtained from the service records by writing to:

Secretary of the Navy Council of Review Boards
Attn:  Naval Discharge Review Board
720 Kennon Street SE Rm 309
Washington Navy Yard DC  20374-5023