ex- MA3, 

Current Discharge and Applicant’s Request

Application Received: 20161019
Characterization of Service Received:   
Narrative Reason for Discharge:   MISCONDUCT (DRUG ABUSE)
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:  20110607	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20150529	Highest Rank/Rate:  MA3
Length of Service:   Year(s)     Month(s)   23 Day(s)
Education Level:  	AFQT:  60

Evaluation Marks (# of occasions):  Performance/Proficiency: 3.0 (5)   Behavior/Conduct: 2.8 (5)   OTA: 2.72 

Awards and Decorations (per DD 214):	Pistol  GCM NDSM GWOTEM GWOTSM OSR 

Periods of UA:  NONE
Periods of CONF:  NONE
Other Time Lost per DD214:  NONE

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

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 15560D), Change 32, effective 07 September 2010 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 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 her discharge is improper because it should have been a medical discharge.
2.	The Applicant contends that her diagnosis was changed from PTSD and her civilian diagnosis was not considered.
3.	The Applicant opines that irrelevant information was submitted to her Administrative Separations Board that had a negative effect.
4.	The Applicant contends the Administrative Separation Board did not follow the recent Memorandum from the Secretary of Defense dated September 3, 2014.

Discussion

Date:  20170328		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 § 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 multiple positive urinalyses, 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  their rights to consult with a qualified counsel, submit a written statement, and request an Administrative Separation Board.   

:  The Applicant contends the discharge is improper because it should have been a medical discharge.  The Applicant contends that the narrative reason for her discharge should be changed to reflect a medical disability.  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.  The Applicant (using DD Form 149) may file the petition with BCNR, at 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490. Their website can be found at http://www.donhq.navy.mil/bcnr/bcnr.htm.

-3: The Applicant contends that her diagnosis was changed from PTSD and her civilian diagnosis was not considered.  Additionally, the Applicant opines that irrelevant information was submitted to her Administrative Separations Board (ASB), which had a negative effect on the ASB’s finding.  In support for this contention, the Applicant references a decision from the NDRB; however, because this is the Applicant’s first appearance before the NDRB, the NDRB assumes the Applicant erroneously cited the NDRB rather than properly citing a decision from the Administrative Separations Board and/or Board of Corrections for Naval Records.  Further, the Applicant provided limited analysis and by what basis the information was irrelevant for consideration.  Consequently, the NDRB assumed the Applicant implies that the ASB or NDRB should not consider the Applicant’s illicit drug use arguing that it was a direct result of her PTSD.  

The record reflects the Applicant presented testimony from her civilian provider during her ASB.  The provider was questioned by the senior member of the board and the Applicant was represented by counsel who had the opportunity to bolster the testimony and relevance of the PTSD diagnosis from her civilian doctor.  In regards to the contention that her diagnosis was changed, the Applicant’s record of treatment shows that after being seen on a walk-in basis she was given an initial diagnosis of PTSD following a one-time visit.  However, the record also reflects that the next day the Applicant’s routine mental health provider who had been seeing her for over four months clarified the Applicant’s current medical status, “Pt continues to maintain that she has PTSD and will change her description of events to try to match that diagnosis.  She has a history of making threats, veiled or unveiled, when she does not get what she wants e.g. PTSD diagnosis or certain medical conditions.”  

Upon discovery that her routine mental health provider clarified the Applicant’s mental health status/diagnosis, the Applicant repeatedly requested a new provider, but never received another diagnosis of PTSD from a military provider.  Similarly, the recommendation for separation from the Applicant’s Commanding Officer listed eight different occasions where the Applicant was screened for PTSD/TBI and considered for any psychiatric or medical considerations as they relate to her discharge.  The Commanding Officer further clarified that both the evolving/working/retracted diagnosis of PTSD and also the Applicant’s civilian provider’s PTSD diagnosis were considered and found not a factor in the Applicant’s misconduct.  

In determining discharge characterization of service, the Applicant’s conduct forms the primary basis for consideration.  The Applicant’s in-service conduct included two separate violations of Article 112a (cocaine use); this was a willful failure to meet the requirements of her contract honorably.  The NDRB considered whether the Applicant’s use of cocaine was an improper attempt to self-medicate for her mental health condition, and also considered the Applicant’s self-admission that she mistakenly used the cocaine because she thought it was “Goodies” aspirin powder, as well as the fact the Applicant then knowingly used cocaine a second time despite knowledge of the illicit substance, the detriment to her military career, and receiving mental health treatment/counseling.   Although the Applicant may feel that PTSD was the underlying cause of her misconduct, the record reflects willful misconduct that demonstrated she was unfit for further service.  The evidence of record did not show that PTSD was a sufficient mitigating factor to excuse the Applicant’s repeated misconduct or non-accountability concerning her actions.  After an exhaustive review, the NDRB determined that PTSD did not mitigate the Applicant’s misconduct.  In summary, the Applicant’s repetitive positive urinalyses as well as admissions of drug abuse, all while receiving treatment, demonstrated pre-meditated acts of misconduct.  The NDRB was not able to find any diagnosis or treatment note that demonstrated the Applicant was unable to discern right from wrong and not responsible for her actions. Relief denied.

4:  The Applicant contends the Administrative Separation Board and/or Board of Corrections for Naval Records and/or the Naval Discharge Review Board did not follow the recent Memorandum from the Secretary of Defense dated September 3, 2014.  The referenced memorandum applies to the Military Discharge Review Boards and Boards for Corrections of Military Records, not to ASBs.  However, the NDRB found the record shows the ASB considered whether PSTD was a mitigating factor in the Applicant’s misconduct.  Similarly, for the reasons stated above, the NDRB reviewed the case with liberal consideration that PTSD potentially contributed to the circumstances resulting in the discharge of a lesser characterization, finding there was an insufficient nexus between the “working PTSD diagnosis” (later retracted PTSD diagnosis) and the Applicant’s repetitive cocaine use to support that PTSD was a mitigating or exonerating factor in the Applicant’s misconduct 

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  UNDER OTHER THAN HONORABLE CONDITIONS, the narrative reason for separation shall  MISCONDUCT (DRUG ABUSE) with a corresponding separation code of GKK, and the reentry code shall  RE-4.  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of the 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/.  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.