ex-HA, USN
ND07-00288

Current Discharge and Applicant’s Request

Application Received:  20070103 	Characterization Received:  
Narrative Reason:  MISCONDUCT (DRUG ABUSE) Authority:  MILPERSMAN 1910-146 SER ABA/062 DTD 060222

Applicant’s Request:	Characterization change to:  
			Narrative Reason change to: MEDICAL or ADMIN SEP
Applicant’s Issues:	1. Enhance employment
			2. Change RE Code/re-enlist
			3. Combat service warranted retention and more favorable characterization
			4. Provided improper advice regarding discharge
			5. Navy did not provide assistance for health issues	

Decision

By a vote of  the Characterization shall  .	
By a vote of  the Narrative Reason shall  MISCONDUCT (DRUG ABUSE).

Date:  20071018  	       		    Location:  Washington D.C. 	

Discussion

Issue(s) 1 - 2:   either  which the Board cannot form the basis of relief for the Applicant, or  the Board does not have the authority to grant the relief for which the Applicant petitioned.  The Applicant is directed to the Addendum regarding .  

Issue 3 ().  The Board construed the Applicant’s reliance on his combat record as a claim that his overall record warranted retention and an honorable characterization of service.  The Board took note of the Applicant’s combat performance; however, did not concur that this performance outweighed the Applicant’s misconduct.  There is credible evidence in the record that the Applicant abused illegal drugs, and the Applicant does not deny doing so.  To the contrary, the Applicant admits that he used an illegal drug for the very purpose of avoiding the combat service which he now relies upon for an upgrade to his characterization of service.  Mandatory processing for separation is required for Sailors who abuse illegal drugs.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  The Applicant received a characterization of general (under honorable conditions) no doubt due to his combat performance.  

Issue 4 ().  The Applicant alleges that when he was notified of administrative separation while still in Iraq he was provided inaccurate information and, as a result, waived his rights.  The Board determined that, even if true, the Applicant was in no way prejudiced in regards to his discharge.  The evidence unequivocally demonstrates that the Applicant was properly re-notified of administrative separation upon his return to the United States, exercised all of his rights, and effectively sought and received a favorable characterization of service recommendation from his administrative separation board.  The summary of service clearly documents that misconduct due to drug abuse was the reason the Applicant was discharged.  No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged.  Regulations limit the Board’s review to a determination of the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considers his discharge proper and equitable.  

Issue 5  ().  The Board found no indication in the record that the Applicant was inequitably or improperly denied treatment for his drug use or any other health issue.  To the contrary, the Applicant’s medical record demonstrates that he received substance abuse treatment, treatment for his physical conditions, and assessment for his mental health issues.  The Board specifically noted that the Applicant’s initial illegal drug use occurred prior to his deployment to Iraq and his combat experience there.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  

In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found that 

Summary of Service

Prior Service:
Inactive: USNR (DEP)	NOT FOUND IN RECORD (NFIR)		Active:   	
Period of Service Under Review:
Date of Enlistment: 20031125	Years Contracted:  NFIR; Extension:  NFIR 		Date of Discharge:  20060327
Length of Service:  02  Yrs  03  Mths  27  Dys	Lost Time:  Days UA:    Days Confined:  
Education Level:  12	Age at Enlistment:  	AFQT:  56	Highest Rank/Rate:  HN
Evaluation marks (# of occasions):	Performance:  3.0(1)	Behavior:  1/0(1)	 	OTA:  2.67 
Awards and Decorations (per DD 214):  NDSM, GWOTSM, IRAQI CAMPAIGN MEDAL, CAR

Medical/Service Record Entries Related to Characterization of Service or Basis for Discharge

200502xx:	Applicant deployed to Iraq attached to First Battalion, Fifth Marines.
	[Extracted from Administrative Discharge Board testimony]

20050302:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 20050225, tested positive for (methamphetamine).

20050415:	NJP -- Viol UCMJ Art. 112a – Wrongful use of methamphetamine.
	Awarded - FOP ($728.00) for (1 months), susp 6 months; RIR (E-2).

20050516:	Applicant notified of proposed administrative separation for misconduct – drug abuse with least favorable characterization of service as under other than honorable conditions.

20050516:	Applicant acknowledged receipt of notification and waived all rights.

200509/10xx:	Applicant returned to CONUS.

20060203:	Applicant tested positive for amphetamine use on Substance Abuse Rehabilitation Program (SARP) screen.
	[Extracted from Medical Record, SARDS, Point Loma Treatment, NMC San Diego, of 20060214]

20060214:	Medical Record:  Reason for visit:  Discharged from SARDS, Inpatient SARP treatment beginning 20060207.
	Diagnosis:  Methamphetamine abuse, Alcohol Abuse
	Recommendation:  If retained, command monitored substance abuse program for one year—assess for re-referral to residential treatment, AA minimum 1 x week, follow-up for closed fracture 3rd R clavicle, follow up with primary care provider for mental health referral re PTSD symptoms.

Discharge Process

Date Notified:					20051108
Reason for Discharge:	 - 
Least Favorable Characterization:	

Date Applicant Responded to Notification:		20051108
Rights Elected at Notification:
	Consult with Counsel			
	Obtain Copies of Documents		
	Submit Statement(s) (date)			  (NFIR)
	Administrative Board			

Administrative Board Date:	20060221
              Findings, by preponderance of the evidence:	BY 3-0 VOTE  -  .
		BY 3-0 VOTE SEPARATION  WARRANTED.
              Recommendation on Separation: 	BY 3-0 VOTE       
              Recommendation on Characterization:	BY 2-1 VOTE 

Commanding Officer Recommendation (date):	 
Separation Authority (date):	COMMANDER, NAVAL MEDICAL CENTER, SAN DIEGO (NFIR)
              Reason for discharge directed:	 - 
              Characterization directed:	
Date Applicant Discharged:	20060327

Types of Documents Submitted by Applicant and Considered By Board

Related to Military Service:	Service and/or Medical Record:  		Other Records:  

Related to Post-Service Period:  	
	Employment:  			Finances:  			Education: 		
	Health/Medical Records:  		Substance Abuse:			Criminal Records:  	
	Family/Personal Status: 		Community Service:  		References:  		
	
Additional Statements From Applicant:  	From Representative:    Other Documentation (Describe)  Ltr from Platoon Commander, 1/5 to Applicant's father; Ltr from Centre for Health Care Medical Associates 

Pertinent Regulation/Law

A.  Naval Military Personnel Manual Article (NAVPERS 15560C), Change 11, effective 29 April 2005 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.

ADDENDUM:  Information for the Applicant

Complaint Procedures:  If you believe that 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:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years from the 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.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board.  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 Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’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 Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board 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 subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct, 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 “PTSD.”  Only the Board for Correction of Naval Records can grant this type of narrative reason change.  

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge 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.  Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  

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 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.  

Board Membership:  The names and votes of the members of the 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