Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: Roberts, James A CIV SECNAVCORB, NDRB
Company: NCPB

Docket No. ND15-00667

ex-PS3, USN

Current Discharge and Applicant’s Request

Application Received: 20150211
Characterization of Service Received:  (per DD 215) UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge:  (per DD 214) MISCONDUCT (DRUG ABUSE)
Reenlistment Code:  RE-4
Authority for Discharge:  (per DD 214) MILPERSMAN 1910-146 [DRUG ABUSE]

Applicant’s Request:  Characterization change to: HONORABLE
       Narrative Reason change to: COMPLETION OF REQUIRED ACTIVE SERVICE OR 				                        SECRETARIAL AUTHORITY
                                 Reenlistment Code to:  RE-1

Summary of Service

Prior Service:
Inactive:	USNR (DEP)	20020927 - 20030323  COG	Active:	NONE

Pre-Service Drug Waiver:  YES

Period of Service Under Review:
Date of Current Enlistment:  20030324	Age at Enlistment:  20
Period of Enlistment:  4 Years  13 MONTHS Extension
Date of Discharge:  20080722	Highest Rank/Rate:  PS3
Length of Service:  05 Year(s)   03  Month(s)   28 Day(s)
Education Level:  12	AFQT:  52
Evaluation Marks:	Performance:  3.3 (3)	Behavior:  2.3 (3)	OTA:  3.11

Awards and Decorations (per DD 214):	NDSM NMCAM SSDR GCM GWOTSM GWOTEM NAVY "E"

Periods of UA/CONF:  NONE

NJP:  NONE  SCM:  NONE  SPCM:  NONE  CC:  NONE

Retention Warning Counseling:  1

- 20040615:	For failure to meet physical readiness test standards (run/walk 15:15).

NDRB Documentary Review Conducted (date):	20110205
NDRB Documentary Review Docket Number:	ND11-00142
NDRB Documentary Review Findings:		Proper as issued and that no change is warranted.

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:	☒

Types of Witnesses Who Testified

	Expert:	☐	Character:	☐

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
SECRETARIAL REVIEW AUTHORITY (SRA)
DIRECTED DISCHARGE REVIEW DECISIONAL DOCUMENT

Applicant’s Issues

1.	The Applicant contends his administrative discharge proceeding and the characterization of his discharge status as Other Than Honorable were improper (in a manner involving errors of law, procedure and discretion that were prejudicial to the Applicant) and, therefore, were both invalid and inequitable because the proceeding was not conducted by, and the determination of the characterization of his service was not made by, an appropriate Separation Authority (a General Court Martial Convening Authority or higher) as required by applicable Naval regulations (see MILPERSMAN 1910-704).  
2.	The Applicant contends his discharge and the characterization of service assigned were improper (in a manner that involved errors of law, procedure and discretion that were prejudicial to him) and, therefore, were invalid and inequitable because both the discharge proceeding and the circumstance upon with the characterization of service was based occurred well after his April 23, 2008 EAOS.
3.    The Applicant contends the quality of his more than five years of service, including more than 31 months of sea service and the receipt of the Navy and Marine Corps Achievement Medal, when considered in its entirety, establishes that his one incident of misconduct was an aberration and that the discharge characterization of his service as Other Than Honorable was inequitably harsh.
4.    The Applicant contends his discharge characterization of Other Than Honorable was inequitable because the misconduct upon which it was based was the result of extenuating and mitigating personal problems (arising from awareness of, and attempts to treat, glaucoma, a serious and incurable medical condition that had already resulted in partial loss of eyesight) in the final year of his service that adversely affected his judgment.
5.    The Applicant contends his outstanding post-service conduct provides a basis for a more thorough understanding of his character and the quality of his Naval service, and demonstrates that the misconduct upon which his discharge was based was aberration and that his discharge characterization of Other Than Honorable was inequitable.
6.    The Applicant contends his discharge proceeding and the characterization of his discharge as Other Than Honorable were inequitable because they were administered and determined in an arbitrary and capricious disregard of applicable Navy regulations.

Decision

Date:  20160630	DOCUMENTARY REVIEW	Location:  Washington D.C.	Representation:  Civilian Counsel

By a vote of 5-0 the Characterization shall remain UNDER OTHER THAN HONORABLE CONDITIONS.
By a vote of 5-0 the Narrative Reason shall remain MISCONDUCT (DRUG ABUSE).
By a vote of 5-0 the Reenlistment Code shall remain RE-4.

Discussion

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 his discharge and the discharge process to ensure his discharge met the pertinent standards of equity and propriety.  The Applicant’s record of service included one NAVPERS 1070/613 (Page 13) warning.  The Applicant also had a pre-service drug waiver for an arrest for marijuana possession prior to entering the Navy.  Based on the Article 112a violation, processing for administrative separation is mandatory.  When notified of administrative separation processing using the administrative board procedure, the Applicant waived his rights to consult with a qualified counsel, submit a written statement, and request an administrative board.

Issue 1:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends his administrative discharge proceeding and the characterization of his discharge status as Other Than Honorable were improper (in a manner involving errors of law, procedure and discretion that were prejudicial to the Applicant) and, therefore, were both invalid and inequitable because the proceeding was not conducted by, and the determination of the characterization of his service was not made by, an appropriate Separation Authority (a General Court Martial Convening Authority or higher) as required by applicable Naval regulations (see MILPERSMAN 1910-704).  Based on the documentation available in the Applicant’s service record, there was evidence of a procedural error when the Applicant’s Commanding Officer exceeded his authority by separating the Applicant without first obtaining review by a General Court Martial Convening Authority.  However, there is a letter addressed to a General Court Martial Convening Authority (Commander, Naval Personnel Command) dated 19 September 2008, which is after the separation date stating the detailed reason for the discharge action and characterization of service.  One of the enclosures with this letter to Commander, Naval Personnel Command was a memorandum for the record dated 19 September 2008.  The memorandum for the record was not found in the Applicant’s service record.  

The NDRB found that the procedural error did occur, but that it was harmless to the Applicant’s discharge characterization/narrative. In this case, as evidenced by a urinalysis results report, the Applicant tested positive for THC on 12 June 2008 which is a violation of UCMJ Article 112a.  Certain serious offenses warrant separation from the Naval Service to maintain proper order and discipline.  Violation of Article 112a is one such offense requiring mandatory processing for administrative separation regardless of grade or time in service.  In accordance with the Naval Military Personnel Manual, (NAVPERS 15560C), Article 1910-146, SEPARATION BY REASON OF MISCONDUCT - DRUG ABUSE, drug abuse must be processed using administrative board procedures with Under Other Than Honorable Conditions being the least favorable characterization of service considered.  

The NDRB also noted that despite the procedural error, and upon notification for separation dated 10 July 2008, the Applicant waived his rights to consult with a qualified counsel, submit a written statement to the separation authority, and request an administrative separation board; thus, admitting his guilt and accepting the discharge with an Under Other Than Honorable Conditions characterization of service.  If the Applicant believed there were mitigating circumstances, it was his obligation to contest those charges at the time they were made.  During an Administrative Separation Board or submitting a letter to the separation authority, he would have had the opportunity to mount a defense against the charges; therefore, the Applicant was provided due process, a process that documented he waived his rights.  As such, in accordance with DODI 1332.28 E4.2.1.1., the NDRB determined that although a procedural error took place, the error was not prejudicial to his discharge and that he received the same characterization of service that other service members received under similar circumstances.  Relief denied.

Issue 2:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends his discharge and the characterization of service assigned were improper (in a manner that involved errors of law, procedure and discretion that were prejudicial to him) and, therefore, were invalid and inequitable because both the discharge proceeding and the circumstance upon with the characterization of service was based occurred well after his April 23, 2008 EAOS.  Characterization of the current enlistment or period of service is determined by conduct, actions, or performance during that enlistment or service in addition to any extensions prescribed by law or regulations or effected with the consent of the member.  In this case, the Applicant served his original four-year contract and had extensions in accordance with law/regulations.  Therefore, the NDRB found the Applicant’s discharge was proper.  Relief denied.

Issue 3:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends the quality of his more than five years of service, including more than 31 months of sea service and the receipt of the Navy and Marine Corps Achievement Medal, when considered in its entirety, establishes that his one incident of misconduct was an aberration and that the discharge characterization of his service as Other Than Honorable was inequitably harsh.  Based on the Applicant’s record of service, the NDRB determined the Applicant engaged in conduct involving one or more acts or omissions that constituted a significant departure from the conduct expected of members of the Naval Service, and the awarded characterization of service was warranted.  The NDRB recognizes that serving in the all-volunteer Armed Forces is challenging but reflects a commitment to our Nation; thus, service members deserve to be recognized upon completion of their service.  One of the ways in which our service members are recognized is through the determination of their characterization of service.  Most servicemembers, however, serve honorably and therefore earn their Honorable discharges.  In fairness to those Marines and Sailors who served honorably, Commanders and Separation Authorities are tasked to ensure that undeserving servicemembers receive no higher characterization than is due.  The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances.  Relief denied.

Issue 4:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends his discharge characterization of Other Than Honorable was inequitable because the misconduct upon which it was based was the result of extenuating and mitigating personal problems (arising from awareness of, and attempts to treat, glaucoma, a serious and incurable medical condition that had already resulted in partial loss of eyesight) in the final year of his service that adversely affected his judgment.  The Applicant was well aware of the Navy’s Zero Tolerance Policy for drug use, and knowingly violated it.  While the Applicant may feel that his personal difficulties were a contributing factor to his misconduct, they do not mitigate his disobedience of the orders and directives that regulate good order and discipline in the Naval Service, demonstrating he was unsuitable for further service.  Relief denied.

Issue 5:  (Decisional) (Equity)  RELIEF NOT WARRANTED.  The Applicant contends his outstanding post-service conduct provides a basis for a more thorough understanding of his character and the quality of his Naval service, and demonstrates that the misconduct upon which his discharge was based was aberration and that his discharge characterization of Other Than Honorable was inequitable.  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 drug lab results report dated 13 June 2016, checking account documentation, collegiate transcripts, evidence of continuous employment, and three character references.  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 Board determined that the characterization of service received was appropriate considering the length of service and UCMJ Article 112a violation.  Relief denied.

Issue 6:  (Decisional) (Propriety/Equity)  RELIEF NOT WARRANTED.  The Applicant contends his discharge proceeding and the characterization of his discharge as Other Than Honorable were inequitable because they were administered and determined in an arbitrary and capricious disregard of applicable Navy regulations.  As addressed in Issue 1, the Applicant tested positive for THC on 13 June 2008 which is in violation of UCMJ Article 112a.  Therefore, the NDRB determined that although a procedural error took place, the error was neither arbitrary nor prejudicial to his discharge in that he received the same characterization of service that other service members received under similar circumstances.  Violation of Article 112a is one such offense which must be processed using administrative board procedures with Under Other Than Honorable being the least favorable characterization of service considered.  The NDRB determined this issue to be without merit.  Relief denied.

Summary:  After a thorough review of the available evidence, to include the Applicant’s summary of service, service record entries, and discharge process, the Board found the discharge was proper and equitable.  Therefore, the awarded characterization of service shall remain UNDER OTHER THAN HONORABLE CONDITIONS, the narrative reason for separation shall remain MISCONDUCT (DRUG ABUSE) with a corresponding separation code of HKK, and the reentry code shall remain RE-4.  The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of his 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, 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.

Key:	NFIR - Not found in record 	RESTR - Restriction	NJP - Nonjudicial punishment	SCM - Summary court-martial
	SPCM - Special court-martial	FOP - Forfeiture of pay	RIR - Reduction in rank	EPD - Extra duties
	CONF - Confinement	CC - Civilian conviction	CCU - Correctional Custody Unit	CBW - Confinement on bread and water

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Nonjudicial punishment	SCM – Summary court-martial	
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties 
	CONF – Confinement		B&W – Confinement on bread and water