ex- AOAN, 

Current Discharge and Applicant’s Request

Application Received: 20180724
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: SECRETARIAL AUTHORITY
Reentry Code change to: NONE REQUESTED

Summary of Service

Prior Creditable Service:
Inactive:			Active:	 

Period of Service Under Review:
Date of Enlistment:  20080507	Age at Enlistment:  22
Period of Enlistment:  4 Years   Extension
Date of Discharge:  20091130	Highest Rank/Rate:  AOAN
Length of Service:  01  Year(s)  06  Month(s)  24  Day(s)
Education Level:  12	AFQT:  46

Evaluation Marks (# of occasions):  Performance/Proficiency: 3.50 (2)   Behavior/Conduct: 2.00 (2)   OTA: 2.75 

Awards and Decorations (per DD 214):	GWOTSM 

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

NJP:  NONE SCM:   SPCM:   CIVIL ARREST:   CC:  

Retention Warning Counseling:  1

- 20081002:	For deficiencies in performance and conduct.

Administrative Corrections to the Applicant’s DD 214

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

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, should include:  “NATIONAL DEFENSE SERVICE MEDAL”

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

NDRB Documentary Review Conducted (date):	20111230
NDRB Documentary Review Docket Number:	ND11-00030
NDRB Documentary Review Findings:		Proper as issued and that no change is warranted.

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 29, effective 10 November 2009 until 06 September 2010, Article 1910-146, SEPARATION BY REASON OF MISCONDUCT - DRUG ABUSE.

B.  Secretary of the Navy Manual 5420.1 of 29 September 2020 (Standards for the execution of the Naval Discharge Review Board).

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

Applicant’s Issues

1.  The Applicant seeks an upgrade in order to access G.I. Bill benefits to support his efforts to seek higher education. 
2.  The Applicant contends a medical issue, that today is rated as a service connected disability, during his period of active duty 
     affords mitigation to his misconduct. 
3.  The Applicant states that his post-service accomplishments should be considered for awarding him an upgrade. 
4.  The Applicant contends that his discharge characterization and narrative are inequitable because it is based on a single 
      isolated incident of minor misconduct. 

Discussion

Date:  20201217		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.

The Applicant's record of service included:

:  The Applicant seeks an upgrade in order to access G.I. Bill benefits to support his efforts to seek higher education.

The NDRB has no authority to upgrade a discharge for the sole purpose of facilitating access to VA benefits.  Regulations limit the NDRB’s review solely to a determination of the propriety and the equity of a discharge.  As such, this issue does not serve as basis upon which the NDRB can grant relief.  The Applicant is directed to the Addendum, specifically, the paragraph regarding the U.S. Department of Veterans Affairs (VA), who determine eligibility for post-service benefits, not the NDRB.  The VA conducts its own determination of eligibility based on service records and input from an Applicant upon their request.  The Applicant should refer to the Veterans Administration website (http://www1.va.gov/opa/Is1/1.asp) for additional assistance regarding a benefit determination review.

Issue 2:  The Applicant contends a medical issue, that today is rated as a service connected disability, during his period of 
               active duty affords mitigation to his misconduct.  

The Applicant contends that the misconduct he committed is mitigated by the medical condition he was suffering from at the time of the incident. Within the record of evidence, and through documentation provided by the Applicant, it can substantiated that the Applicant was suffering during his tenure on active duty, and today, from lower back pain that derives from a spinal abnormality. While on active duty the Applicant received treatment for his pain, but an accurate diagnosis of the issue was not identified until several years after his discharge. The Applicant provides a diagnosis from the VA that accounts for his back pain as a service connected disability. In close review of the Applicant’s record it can be determined that the Applicant initiated treatment for back pain in January 2009 and received care through the time he was discharged. Specifically from January to July 2009 the Applicant was assigned to a light duty profile for six weeks; had his professional responsibilities adjusted to account for his physical ability and support rehabilitation; was prescribed and conducted physical therapy; and was prescribed pain relief medication, muscle relaxers, anti-inflammatory and sleep aid medications. In review of the record the Board could determine that the Applicant’s issues were being treated with consistent and progressive care by his Medical Officer despite the enduring discomfort experienced by the Applicant. While the premise of his back pain was not specifically identified while on active duty the record of evidence substantiates that the Applicant’s issues were being addressed and there is no evidence or indications of medical neglect. It is for this reason that the Board was challenged to accept the Applicant’s decision to self-medicate for the pain he was experiencing when he was receiving consistent medical attention and prescription drugs to manage pain. A decision to seek relief from a drug that is not federally recognized as a legal substance nor specifically aligned with treatment for his specific condition while under the care of medical professionals limited the Board’s ability to accept the Applicant’s justification for the need to self-medicate with the use of an illegal substance. 

Per the directions to the Board the primary basis for deliberation are the issues presented by the Applicant as well as his testimony and the evidence within the record. The Applicant states within his issues the inequity of his discharge is that he used marijuana as a form of self-medication for a medical issue that would later be classified as a service connected disability. However, during the Applicant’s testimony on 17 Dec 2020 when describing the events associated with his use of marijuana he did not refer to the context of his use as a means to minimize and address pain. He referenced his use in July 2009 as a decision that flowed into the relaxed atmosphere he was enjoying with friends and family while on leave away from his squadron. The Applicant did not reference pain or suffering when he recounted the evening of his marijuana use.  He also made no mention to the extent that he felt there was no other alternative to mitigate his associated pain even though that decision would violate the service drug policy. While the Applicant states in his application his use of marijuana was an effort to self-medicate his testimony at the hearing conveyed a complete lapse in discipline and disregard for a drug policy he had previously acknowledged his understanding of during the enlistment process. Thus the Board determined the severity of his decision was not accounted for with regard to the integrity of the policy or in a desperate effort to relieve pain. The mitigation for the use of marijuana could not be substantiated by the Board. Relief based on this issue is denied. 

Issue 3:  The Applicant states that his post-service accomplishments should be considered for awarding him an upgrade.

The Applicant contends his post-service conduct warrants consideration for an upgrade to Honorable.  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 personal statement, evidence of efforts to sustain continuous employment, character/witness reference and VA Disability Decision documents.   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 violations.  Relief denied.

Issue 4:  The Applicant contends that his discharge characterization and narrative are inequitable because it is based on a single 
               isolated incident of minor misconduct.

The Applicant contends that his discharge characterization and narrative are inequitable because they weigh on a single isolated incident of minor misconduct. The Applicant states within his application, and during the hearing testimony, that his service while in the Navy was honorable and that his performance as documented by a fitness report from July 2009 validates this claim. The Applicant seeks an upgrade to more accurately reflect the contributions he made to the Navy as well as the quality of service he provided. In a thorough review of the Applicant’s record the Board acknowledged the Applicant’s performance evaluation that documents performance traits that meet standards and recommends advancement. The Board agreed that the evaluation affords noteworthy performance and personal attributes. Also within the record is a retention warning counselling from 2 Oct 2008 that cites a pattern of performance deficiencies while the Applicant was a student at his MOS school. In testimony the Applicant credits these issues to challenges adjusting to military life without his family. When questioned about comments within the counselling that cite excessive visits to sick call that impacted his class attendance the Applicant stated they were likely do to the fact he was hungover. This account provided by the Applicant does not support a position that promotes the profile of an outstanding sailor as self-described by the Applicant who was 22 years old at the time. While the Board understands the challenges associated with adjusting to a military lifestyle the Applicant was not subject to unique conditions that were not experienced by his peers or others who upheld standards. This counselling also challenges the Applicant’s position that his use of marijuana was a single isolated incident as within 9 months he was counselled for performance deficiencies and found to have violated the service drug policy. This level of professionalism and conduct is counter to the good order and discipline essential within commands of the U.S. Navy.   

While the Applicant classifies his use of marijuana as an isolated incident, 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.  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.  However, here, the command did not pursue a punitive discharge but opted instead for the more lenient administrative discharge. In addition due to the Applicant’s service status he was entitled to an administrative separation board as his command would of had to recommend him for an Other Than Honorable discharge. The Board recommended and the Separation Authority awarded a General (Under Honorable Conditions). This upgrade in discharge from the command’s original recommendation reflects some level of mitigation to the Applicant’s situation. Thus the Board agreed that the Applicant had already been given a level of relief within the discharge assigned by the Separation Authority. For these reasons the Board did not grant further relief in response to the Applicant’s petition for an upgrade.     

 The NDRB reviews the propriety and equity of an Applicant’s discharge individually, on a case-by-case basis.  If such a review reveals an impropriety or inequity, relief is in order.  Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval Service. A General (Under Honorable Conditions) discharge is warranted when the quality of the member’s service has been honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record. In this case, the Applicant’s service was honest and faithful but significant negative aspects of the member’s conduct or performance of duty outweighed the positive aspects of the member’s service record.  In making its determination, the Board did not identify mitigating conditions that would of forced the Applicant to seek means of self-medication through the use of illegal substances to address the pain he experiences from his back issues. In addition the Board did not agree that this misconduct be viewed as isolated within the Applicant’s service when documentation exists that addresses substandard performance during MOS school. This behavior was within the control of the Applicant. The Board also did not identify violating the service drug policy as minor misconduct when the within the application itself the Applicant recognizes his digression as “a serious offense.”   

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.

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 .  Therefore, the awarded characterization of service shall  GENERAL (UNDER 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 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: 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.