, ex- ENS, 

Current Discharge and Applicant’s Request

Application Received: 20200115
Characterization of Service Received:   
Narrative Reason for Discharge:   MISCONDUCT (DRUG ABUSE)
Authority for Discharge:   SECNAVINST 1920.6C 

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

Summary of Service

Prior Service:
Inactive: USN (ROTC)	20160126 - 20160505  	Active:	

Period of Service Under Review:
Date of Appointment:  20160506	Age:  23
Years Contracted:  Indefinite
Date of Discharge:  20191139	Highest Rank:  ENS
Length of Service:   Year(s)     Month(s)   25 Day(s)
Education Level:  	AFQT:  N/A
Officer’s Fitness reports:  Available

Awards and Decorations (per DD 214):	NDSM GWOTSM SSDR  

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

NJP:  

- 20180329:	Article 112a (Wrongful use, possession, manufacture or introduction of controlled substance) 
	Awarded: Punitive Letter of Reprimand  Suspended:   

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:	

 
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 board members erroneously ignored overwhelming evidence as 
     to the character of her service. 

2.  The Applicant contends that her discharge is inequitable because she agreed to perform surveillance work in support of 
     NCIS in exchange for a higher discharge characterization. 

3.  The Applicant contends her performance and rehabilitation after her drug use incident are worthy of consideration for an 
     upgrade. 

4.  The Applicant contends that at the time of her misconduct she was experiencing stressful issues that caused her to engage in  
     uncharacteristic behavior and demonstrate a complete lack of judgment. 

Discussion

Date:  20200916		Location:  WASHINGTON D.C.	Representation:  None

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 PTSD/TBI was based in whole or in part on sexual trauma, intimate partner violence, or spousal abuse, the NDRB obtained a review by a psychiatrist, psychologist, or social worker with training on mental health issues associated with PTSD/TBI or other trauma.  Additionally, and pursuant to § 1553, the NDRB reviewed the case with liberal consideration that a mental health condition, including 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:

  for  of the Uniform Code of Military Justice (UCMJ): 
Article 112a (Wrongful use, possession, manufacture or introduction of controlled substance) 

Based on the Article 112a violation and her status as a commissioned officer the Applicant was required to show cause for continuation in the naval service. When notified of her Board of Inquiry for continued service, the Applicant  her rights to consult with a qualified counsel, submit a written statement, and petition a board of officers who form a Board of Inquiry (BOI) Panel.   

:  The Applicant contends her discharge is improper because board members erroneously ignored overwhelming   
               evidence as to the character and contributions of her service as put forward by officers she served with aboard the 
               USS San Antonio. 

The Applicants states there was impropriety in the execution of her Board of Inquiry (BOI). Specifically, the Applicant states that testimony from character references that substantiated her professional capabilities and contributions were ignored and not considered by the BOI panel. While the Board reviewed letters of recommendation that advocated for the Applicant’s retention and recognized the confidence these officers had in her abilities there is no substantiation that the BOI panel ignored this information. In isolated context the endorsements do present a favorable picture of the Applicant, however, enjoying the presumption of  regularity the Board determined the panel made their final determination for retention based on all information pertaining to the case inclusive of the committed misconduct and associated circumstances along with all endorsements of support. Other than a statement there is nothing to support any claim of impropriety associated with the claim that the panel ignored letters of support. In addition the Board did believe these recommendations were considered by the members of the  BOI panel as they recommended separation, but with a General characterization assigned. This would reflect consideration for positive materials and endorsements in relation to the cited misconduct.   

Issue 2:  The Applicant contends that her discharge is inequitable because she agreed to perform surveillance work in support     
               of  NCIS, during which she experienced a MST incident, in exchange for a higher discharge characterization.

The Applicant states that she was treated unfairly by the Separation Authority because an agreement with the Naval Criminal Investigative Services to work as an informant in support of their counter-drug efforts in exchange for consideration of a more favorable discharge characterization was not honored. While the Board does not contest the Applicant’s willingness to support NCIS as an informant there is no linkage to this participation and the determination of the Applicant’s discharge. The Applicant implies she was treated unfairly by the Separation Authority.  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 her issue.  There is insufficient evidence in the record, nor has the Applicant produced any evidence, to support the contention that she was wrongfully discharged.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.  The commanding officer’s recommendation for separation is just that, a recommendation.  The Separation Authority determines whether the allegations in the notification of the basis for separation are substantiated by the evidence.  There is no provisional guarantee that an officer will receive anything that a local commanding officer recommends. With regard to NCIS there is no influence or participation with the determination of an individual’s discharge characterization. In addition even the Commanding Officer can only make a recommendation and not guarantee a specific characterization. 

Within the context of the issue pertaining to the Applicant’s support to NCIS she states that she was the victim of a sexual assault. With this statement inclusive within the record the Board addressed the MST in relation to the Applicant’s misconduct and whether the incident presented mitigating circumstances. Being that the cited misconduct of drug abuse preceded the sexual trauma event the Board was not able to establish a nexus between the MST experienced and the act of misconduct. Thus the Board determined that the MST did not provide mitigation to the Applicant’s decision to use illegal substances. 

Issue 3:  The Applicant contends her performance and rehabilitation after her drug use incident are worthy of consideration for 
               an upgrade.

The Applicant states that her rehabilitation and resilience are deserving of consideration for an upgrade as it affords a more reflective representation of the person she is today. The NDRB is authorized to consider post-service factors in the re-characterization of a discharge.  However, there is no law, or regulation, that provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving the service.  Normally, to permit relief, a procedural impropriety or inequity must have been found to exist during the period of enlistment in question.  The Applicant provided a personal statement, character references, post-incident performance assessments and communicated remorse for her actions. However, post-incident 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/incident 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.  

Issue 4:  The Applicant contends that her misconduct was an isolated incident that occurred at a time when she was 
               experiencing stressful issues that caused her to engage in uncharacteristic behavior and demonstrate a lack 
               of judgment.

The Applicant contends that her decision to use cocaine came at a time when she was experiencing stressors associated with the operational tempo of her ship and that the command climate caused her to believe her mental health was not a priority. Aside from a general statement expressing a struggle with managing stress the Applicant did not specifically identify to the Board what specific stressors were degrading her mental health and how they overwhelmed the means of a commissioned military officer to manage. A review of the record revealed to the Board only routine stressors that are not typically elevated to the clinical level of treatment. While this is not to say the professional responsibilities of an officer are not challenging the Applicant did not identify unique circumstances that would afford insight as to why they would lead her to engage in the willful misconduct of using cocaine. In addition, the record of evidence shows the Applicant did use illegal substances prior to entering the Reserve Officer Training Corps and at least once while in this accession program. Thus the Board was challenged to accept the Applicant’s claim that her decisions to use cocaine was out of character and a atypical behavior. As an Officer who accepts a commission it is expected that an individual is capable of adjusting to the demands of the profession and resorting to means that violate service policy in response to routine/normal stressors is unacceptable. In a split decision the Board voted to not grant relief and uphold the discharge characterization.  

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.  

An Under Other Than Honorable Conditions discharge is warranted when a member engages in conduct involving one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service.  In making its determination with a full and thorough review of the record of evidence the Board determined that the use of cocaine by the Applicant was a significant departure from the conduct expected of a commissioned officer.  

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  UNDER OTHER THAN HONORABLE CONDITIONS, the narrative reason for separation shall  MISCONDUCT (DRUG ABUSE) with a corresponding separation code of BKK. 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: 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.