ex-FC3, USN

Current Discharge and Applicant’s Request

Application Received: 20140313
Characterization of Service Received:   
Narrative Reason for Discharge:   
Authority for Discharge:   MILPERSMAN  

Applicant’s Request:  Characterization change to: 
		       Narrative Reason change to: HONORABLE

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	20080923 - 20081005  	Active:	

Pre-Service Drug Waiver:  

Period of Service Under Review:
Date of Current Enlistment:  20081006	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20130326	Highest Rank/Rate:  FC2
Length of Service:   Year(s)     Month(s)   21 Day(s)
Education Level:  	AFQT:  86
Evaluation Marks:	Performance:  3.25 (4)	Behavior:  2.80 (5)	OTA:  2.88

Awards and Decorations (per DD 214):	Rifle  Pistol       (2) 

Periods of UA/CONF:  

NJP:     

- 20121030:	Article  (Wrongful use, possession, etc. of controlled substances)
	Awarded:     Suspended:  

SCM:  	SPCM:  	CC:  	Retention Warning Counseling:  

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 29, effective 10 November 2009 until Present, 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 seeks an upgrade to enhance employment opportunities.
2.	The Applicant contends he was treated unfairly by his command relative to his incident.
3.	The Applicant contends he did not receive counseling or treatment for his drug use.
4.	The Applicant contends there is a limited-use policy that was never explained to him. 
5.	The Applicant contends he was placed on restriction resulting from his nonjudicial punishment (NJP).
6.	The Applicant contends his misconduct is mitigated by Post-Traumatic Stress Disorder (PTSD), a personal crisis, and dealing with anxiety and Attention Deficit / Hyperactivity Disorder (ADHD).
7.	The Applicant contends his post-service conduct warrants consideration for an upgrade.

Decision

Date:  20140807	     	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 reviewed the Applicant’s record to see if he deployed in support of a contingency operation and was, as a consequence of that deployment, diagnosed with either PTSD or Traumatic Brain Injury.  A review of his record revealed that while he did deploy in support of a contingency operation, his claim of PTSD did not result from that deployment but rather from discovering his roommate who had committed suicide.  As a result, his case did not warrant an expedited review in accordance with U.S. Code, Title X, Section 1553(d)(1), but the NDRB did include a Navy psychiatrist on the board. 

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 Board did complete a thorough review of the circumstances that led to  discharge and the discharge process to ensure  discharge met the pertinent standards of equity and propriety.  The Applicant’s record included   for  of the Uniform Code of Military Justice (UCMJ): Article  (Wrongful use, possession, etc. of controlled substances, ).  The Applicant  a pre-service drug waiver prior to entering the Navy.  Based on the Article 112a violation, processing for administrative separation is mandatory.  The NDRB did not have his administrative separation package to determine whether or not he waived  rights to consult with a qualified counsel, submit a written statement, and request a General Court-Martial Convening Authority review.

:  (Nondecisional)  The Applicant seeks an upgrade to enhance employment 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. 

:  (Decisional) ()  .  The Applicant contends he was treated unfairly by his command relative to his incident.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that his command treated him unfairly.  After a review of the records, the NDRB determined the Applicant’s command treated him more leniently than others as violation of the Navy’s zero-tolerance drug policy typically results in an Under Other Than Honorable Conditions discharge.  The Applicant’s service included one NJP for violation of UCMJ Article 112a as a result of his reporting to a medical appointment while under the effects of Spice and a subsequent search of his room resulting in finding Spice and associated paraphernalia.  Violation of UCMJ Article 112a is considered a serious offense for which a punitive Bad Conduct discharge is authorized.  The command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge and the lenient recommendation for a General characterization of service.  Relief denied. 

:  (Decisional) ()  .  The Applicant contends he did not receive counseling or treatment for his drug use.  All servicemembers separated for drug abuse are screened for drug dependency and provided the option of treatment prior to separation.  The intent of this treatment is for the benefit of the Applicant after discharge, not to rehabilitate the Applicant for continued service.  The record of evidence shows the Applicant’s initial separation evaluation dated 1 November 2012 stated “Member is being treated for psychiatric disturbance as well as addressing previous illicit substance (“Spice”) use.  No other active issues or problems.  Is fit for separation.”  After completing this evaluation, the Applicant demonstrated further mental health instability and remained on active duty while receiving additional treatment for his numerous issues through his final separation in March 2013.  The NDRB found this statement and the five additional months the Applicant spent in service receiving various treatments for his substance abuse and mental health issues to be compelling evidence that demonstrates he did receive treatment for his drug abuse prior to separation.  Relief denied. 

:  (Decisional) ()  .  The Applicant contends there is a limited-use policy that was never explained to him.  The Navy’s policy for drug abuse is zero tolerance.  The Applicant signed paperwork acknowledging this policy on 6 October 2008 after completing the Navy’s “Zero Tolerance for Drug Screening” training modules and successfully passing the 24-hour pre-accession testing.  Self-referral for drug use (sometimes referred to as the limited-use policy) constitutes confirmation of illegal drug abuse and requires a Sailor to be processed for administrative separation.  The discovery of the Applicant’s drug use was not as a result of self-referral, and he was properly punished for his violation of the Navy’s zero-tolerance drug policy.  Additionally, the Voluntary Drug Exemption Program is no longer applicable and was not applicable at any time during the Applicant’s service.  The record shows the Applicant received NJP for violation of UCMJ Article 112a.  Certain serious offenses warrant separation from the service to maintain proper order and discipline.  Violation of Article 112a is one such offense requiring mandatory processing for administrative separation regardless of grade, performance, or time in service.  This 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.  The command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge.  Relief denied. 

5:  (Decisional) ()  .  The Applicant contends he was placed on restriction resulting from his NJP.  Restriction is an appropriate punishment that can be awarded as the result of being found guilty at NJP.  Further, administrative discharge processing is a separate and distinct process from punitive proceedings such as NJP or court-martial.  Administrative discharge processing is administrative in nature and not considered a form of punishment.  The Applicant’s discharge was proper.  Relief denied. 

6:  (Decisional) ()  .  The Applicant contends his misconduct is mitigated by PTSD, a personal crisis, and dealing with anxiety and ADHD.  The only mention of PTSD in the Applicant’s service record was on a DD Form 2807-1 form filled out by the Applicant on 1 November 2012 in which he stated, “I’ve been recently treated for anxiety and attention disorders.  I am currently seeing a psychiatrist pertaining to PTSD and childhood trauma as of 7 Oct 2012.”  On this same form, the medical officer’s response was, “Member is currently receiving mental health treatment for psychiatric conditions including claimed PTSD, taking Stratera and Seroquel….  Is fit for separation.”  Further, the record of evidence shows the Applicant’s mental health diagnoses were ADHD, anxiety disorder, adjustment disorder with disturbance of emotions and conduct, and depressed mood.  According to the Applicant’s medical records, the Applicant disclosed he suffered from some of these conditions prior to enlisting, however, the Applicant’s enlistment documentation is void of mention of any of these ailments, indicating he may have fraudulently enlisted.  His command, however, did not process him for administrative separation for Fraudulent Enlistment.  Though there is a mention of PTSD in the Applicant’s in-service medical records, there is no diagnosis of such by a qualified medical professional, nor did the Applicant submit any evidence of a post-service diagnosis of PTSD.  Though the Applicant may feel that PTSD, anxiety, ADHD, and a personal crisis mitigate his misconduct, the record reflects willful misconduct that demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  There were multiple legal options available to treat his mental health issues and personal crisis.  Turning to the use of a controlled substance was not a viable option.  The NDRB determined PTSD and his other issues did not mitigate his misconduct, and his possession and use of Spice were conscious decisions to violate the tenets of honorable and faithful service.  Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service.  Relief denied. 

7:  (Decisional) ()  .  The Applicant contends his post-service conduct warrants consideration for an upgrade.  The NDRB is authorized to consider post-service factors in the re-characterization of a discharge.  However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question.  Besides the Applicant’s statement on the DD Form 293, he failed to provide any documentary evidence on his behalf for post-service consideration.  The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum with the recognition 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.  Without post-service documentary evidence, the Board determined the awarded characterization of service shall remain Under Honorable Conditions (General).  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 additional 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