ex- AA, 

Current Discharge and Applicant’s Request

Application Received: 20160427
Characterization of Service Received:   
Narrative Reason for Discharge:   MISCONDUCT
Authority for Discharge:   MILPERSMAN 1910-146 [DRUG ABUSE] 

Applicant’s Request:	Characterization change to:	
Narrative Reason change to: NONE REQUESTED
Reentry Code change to: NONE REQUESTED

Summary of Service

Prior Creditable Service:
Inactive:	 	             	Active:	 

Period of Service Under Review:
Date of Enlistment:  20000612	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20020719	Highest Rank/Rate:  AA
Length of Service:   Year(s)     Month(s)   08 Day(s)
Education Level:  	AFQT:  40

Evaluation Marks (# of occasions):  Performance/Proficiency: 3.0 (1)   Behavior/Conduct: 3.0 (1)   OTA: 3.14 
Fitness Reports: 

Awards and Decorations (per DD 214):	AFEM SSDR LoC NDSM  

Period of UA:  20010828 - 20010905, 8 days
Periods of CONF:  NONE
Other Time Lost per DD214:  NONE

NJP:    SCM:    SPCM:    CIVIL ARREST:    CC:    Retention Warning Counseling:  

NDRB Documentary Review Conducted (date):	20091029
NDRB Documentary Review Docket Number:	ND09-01173 
NDRB Documentary Review Findings:		Proper as issued and that no change is warranted.

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

	  “MILPERSMAN 1910-146”
	
The NDRB will recommend to Commander, Navy Personnel Command or Commandant of the Marine Corps that the DD 214 be corrected as appropriate.

Types of Documents Submitted/reviewed

	DD 214:		Service/Medical Record:		Other Records:	
	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:	
 
Types of Witnesses Who Testified

	Expert:  			Character:    

	Witness E-1:			Witness C-1:	
	Witness E-2:			Witness C-2:

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 33, effective 16 July 2001 until 
21 August 2002, 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 IV, Para 403m(7)(a), Presumption Concerning Court-Martial Specifications.

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

Applicant’s Issues

1.	The Applicant contends that the allegations made against him, which resulted in his removal and failure from Level III treatment at the Alcohol Rehabilitation Department, Norfolk and led to his administration separation, were totally false.  
2.	The Applicant requests a change to his character of service due to his post-service achievements.

Discussion

Date:  20170721		Location:  WASHINGTON D.C.	Representation:  

The Naval Discharge Review Board (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 completed a thorough review of the circumstances that led to the discharge and the discharge process to ensure the pertinent standards of equity and propriety were met.

As a result of the Applicant’s claim of PTSD, TBI, Military Sexual Trauma, or a mental health condition, and in accordance with 10 U.S.C. § 1553, the NDRB included a member who is a physician, clinical psychologist, or psychiatrist.  Additionally, and pursuant to § 1553, the NDRB reviewed the case with liberal consideration that PTSD, TBI, or Military Sexual Trauma potentially contributed to the circumstances resulting in the discharge of a lesser characterization.  A review of the record revealed that the Applicant did not deploy in support of a contingency operation, and so this case did not warrant an expedited review in accordance with U.S. Code, Title X, § 1553.

The Applicant’s record of service included no retention warning counseling and no misconduct resulting in nonjudicial punishment or court-martial.

Based on the Applicant’s admitted use of illegal drugs, the command administratively processed the Applicant for separation.  Based on the Article 112a violation, processing for administrative separation is mandatory.  When notified of administrative separation processing, the Applicant  his rights to consult with a qualified counsel, submit a written statement, and request an Administrative Separation Board.  

:  The Applicant contends that the allegations made against him, which resulted in his removal and failure from Level III treatment at the Alcohol Rehabilitation Department, Norfolk and led to his administration separation, were totally false.  The Applicant stated that the individual who made these allegations even conveyed this fact (of the allegations being totally false) to the Command Drug and Alcohol Program Advisor Officer.  The Applicant also stated that his personal character was basically destroyed with those allegations of abusive language toward a female counterpart.   

The record shows that the Applicant went absent without leave prior to being admitted for Level III residential treatment.  In a letter from the Director, Counseling and Assistance Center, HARY S TRUMAN (CVN 75) to the Commanding Officer, HARRY S TRUMAN (DVN 75), dated 03 January 2002, it states that the Applicant reported feeling depressed and having suicidal ideation subsequent to drinking heavily, using marijuana, and drinking codeine.  He went to a hospital in Louisiana and then was transferred to ARD Norfolk for treatment.  During his treatment, a van driver reported that he was making inappropriate comments to and from a 12-Step meeting, which was regarded as threats to another patient.  He was also reported for making graphic sexual remarks in the presence of both male and female patients. The Applicant was taken to a Patient Disposition Board (PBD) where he was apathetic towards treatment and would not verbalize why he should continue treatment.  The PBD discharged him for non-compliance with treatment strategies.  The Applicant declined to appeal the decision.  The Applicant’s Commanding Officer, in a letter to Commander, Navy Personnel Command, dated 30 June 2002, recommended a waiver for his mandatory separation be approved.  Navy Personnel Command did not approve the waiver request.

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 insufficient evidence in the record, nor has the Applicant produced any evidence, to support the contention that the allegations made against him were false.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  The NDRB concluded the command acted appropriately in processing the Applicant for separation.  

:  The Applicant requests a change to his character of service due to his post-service achievements.  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 stated the he has excelled in his role as a Minister of the Gospel of Jesus Christ, he has served the last five years in the capacity of the Assistant Pastor of the Comforter Baptist Church, that it has been 10 years since his last indulgence of any kind, and that he has no arrest for any activity related to anything negative.  The Applicant also provided a letter of reference from his Pastor and a Certificate of License to preach the Gospel by the Zion Hill Baptist Church in Pineville, LA.  However, post-service conduct 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 provides a basis for a more thorough understanding of the performance of the Applicant during the period of service that is the subject of the discharge review.  The NDRB concluded the command acted appropriately in processing the Applicant for separation and an upgrade is not warranted due to his post-service achievements.  

:  BOARD GENERATED ISSUE.  The Applicant should have received a Notification Procedure with the least favorable characterization of service possible being General (Under Honorable Conditions) instead of an Administrative Board Procedure when notified of his administrative separation due to his self-referral to drug use in accordance with MILSPERS 1910-046 (Separation Authority on the Applicant’s DD Form 214).  

The record shows that the Applicant’s Commanding Officer, HARRY S. TRUMAN (CVN 75), in a letter to Commander, Navy Personnel Command, dated 30 June 2002, stated that the Applicant self-referred to the Alcohol Rehabilitation Division.  In this letter, he recommended that the Applicant be retained for his admitted drug use and recommended a waiver for his mandatory separation for rehabilitation failure be approved.   The record also shows that the Applicant received an Administrative Separation Processing Notice – Administrative Board Procedure on 23 June 2002 for Misconduct due to drug abuse as evidence by admission to marijuana use.  In accordance with MILSPERSMAN 1910-046, paragraph 3a(1) and (3),  Notification Procedures are used for the following situations:  “Member self refers to a qualified self referral representative with the intent of acquiring treatment and is found to be drug depended by proper medical authority;” and “Voluntary discloses evidence of prior personal drug abuse during course of treatment/rehabilitation.”  Based on MILPERSMAN 1910-146, the Applicant should have received a Notification Procedure instead of an Administrative Board Procedure, which has a least favorable characterization of service possible of General (Under Honorable Conditions).  The NDRB determined that an impropriety occurred when processing the Applicant for separation and that the Applicant warrants a General (Under Honorable Conditions) characterization of service. 

Decision

After a thorough review of the available evidence, to include the Applicant’s issues, summary of service,  record entries, and discharge process, the Board found  at the time of discharge.  Therefore, the awarded characterization of service shall  GENERAL (UNDER HONORABLE CONDITIONS), the narrative reason for separation shall  MISCONDUCT with a corresponding separation code of HKK, and the reentry code shall  RE-4.  The Applicant is not eligible for further reviews by the NDRB.  The Applicant may petition the Board for Correction of Naval Records, 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review using DD Form 149.  

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/.  More information is available at http://www.secnav.navy.mil/mra/CORB/pages/ndrb/default.aspx.

Additional Reviews: After a document review has been conducted, former members are eligible for a personal appearance or telephonic 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, or http://www.secnav.navy.mil/mra/bcnr/Pages/default.aspx 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: Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code.  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-Traumatic Stress Disorder and/or Traumatic Brain Injury: For all claims involving PTSD and/or TBI, the NDRB’s review implemented the guidance set forth in the SECDEF Memorandum of 3 September 2014 (Supplemental guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder).  In accordance with U.S. Code, Title X, Section 1553 (d)(1) & d(2), the NDRB included a member who is a physician, clinical psychologist, or psychiatrist and accorded the case sufficient priority to achieve an expedited resolution and a final decision.

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.

Military Sexual Trauma: The Department of Veterans Affairs (VA) uses the term "military sexual trauma" (MST) to refer to experiences of sexual assault or repeated, threatening sexual harassment experienced while on federal active duty, active duty for training, or inactive duty training.  To get confidential one-on-one help please contact the MST Coordinator at your nearest VA Medical Center or Call Safe Helpline at 1-877-995-5247 or visit www.mentalhealth.va.gov/msthome.asp.

Reporting Military Sexual Trauma: To report a military sexual trauma, you can make an anonymous report to the Naval Criminal Investigative Service (NCIS) by Text or Online.  The NCIS Tip Line provides service members, veterans and civilians a safe, discreet and ANONYMOUS option to report criminal and force protection threats within the USN and USMC without concerns of retaliation.  To report a crime by Text: Text  274637 (CRIMES); Type “NCIS” at the top of the message; and include as much detail as possible to ensure your tip can effectively be investigated.  To send your ANONYMOUS Tip via the online, go to https://www.tipsubmit.com/webtipsNAV.aspx?AgencyID=840.

Suicide Prevention: Veterans in emotional crisis or their loved ones can call the free and confidential Veterans Crisis Line at 1-800-273-8255 (then press 1); or chat online at http://www.veteranscrisisline.net, or send a text message to 838255 to connect with a caring, qualified Veteran Affairs Responder who can deal with any immediate crisis.