, ex- LTJG, USN

Current Discharge and Applicant’s Request

Application Received: 20200811
Characterization of Service Received:   
Narrative Reason for Discharge:   MISCONDUCT (OTHER)
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 Creditable Service:
Inactive:	              		Active:	 19970908 - 20090212 HON

Period of Service Under Review:
Date of Appointment:  20090213	Age at Appointment:  30
Period of Enlistment: Indefinite
Date of Discharge:  20120831	Highest Rank/Rate:  LTJG
Length of Service:  03  Year(s)  06  Month(s)  19  Day(s)
Education Level:  16	AFQT:  34
Deployment/Operation: 

Fitness Reports: 

Awards and Decorations (per DD 214):	Rifle SS Pistol SS NMCAM (3) MUC NAVY “E” GCM (3) NDSM AFEM GWOTEM GWOTSM SSDR (2) FLoC (3)

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

SCM:     SPCM:     CIVIL ARREST:     CC:     Retention Warning Counseling:  NONE

NJP:  1

- 20110815:	Article 112a (Wrongful use, possession, manufacture or introduction of controlled substance) 
	Awarded:   Suspended:   

Administrative Corrections to the Applicant’s DD 214

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

	   “CONTINUOUS HONORABLE ACTIVE SERVICE FROM 19970908 UNTIL 20090212”
	
The NDRB will recommend to Commander, Navy Personnel Command or Commandant of the Marine Corps that the DD 214 be corrected as appropriate.

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.  Secretary of the Navy Instruction 1920.6C (ADMINISTRATIVE SEPARATION OF OFFICERS), effective 15 December 2005 until Present, establishes policies, standards and procedures for the administrative separation of Navy and Marine Corps officers from the naval service in accordance with Title 10, United States Code and DoD Directive 1332.30 of 14 March 1997.

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 contends his discharge is improper based on the conduct of his NJP and associated awarded punishment.
2.	The Applicant contends his discharge is improper and inequitable because he did not wrongfully or intentionally use a controlled substance.
3.	The Applicant contends his in-service and post-service conduct warrant consideration for an upgrade.

Discussion

Date:  20201230		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:

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

Issue 1-2:  The Applicant contends his discharge is improper based on the conduct of his NJP and associated awarded punishment.  And, the Applicant contends his discharge is improper and inequitable because he did not wrongfully or intentionally use a controlled substance.

In support of this issue, the Applicant stated that he was subject to two NJPs for the same offense and the final awarded punishment materially prejudiced his record.  The Applicant further stated that he did not knowingly use a controlled substance and this is supported through statements that he made to the Command Master-at-Arms (MA) and his wife’s medical record.  The Applicant provided excerpts of his in-service records and wife’s medical record, seven character statements, and educational transcripts and a degree.

In review of the evidence of record, the Applicant has a previous period of Honorable service and the period of service that is subject to discharge review is three years and six months.  During this period, the Applicant attained two average fitness reports and two adverse fitness reports which detailed his misconduct.  The Applicant was also subject to and found guilty at NJP for violation of Article 112a, and he was awarded a Punitive Letter of Reprimand.  Specific to this offense, the Applicant tested positive on a random urinalysis for Codeine.  In the conduct of this punitive action, the NDRB noted his command did error during the NJP process in that the Applicant initially found guilty of violating Article 112a and awarded an Oral Reprimand.  Regulations dictate that officers are not permitted to receive Oral Reprimands at NJP and the command promptly rectified this administrative error by awarding a Punitive Letter of Reprimand.  

Following NJP, the Applicant submitted an appeal letter in which he cited issues associated with the two NJPs for the same offense and he continued to contest his innocence.  The Applicant also recounted his initially questioning by the Command MA.  He stated that he was sick at some point and he took some cough syrup.  He further stated that his wife told him that he likely took her prescribed cough syrup and he attached an excerpt of her medical record that showed she was prescribed cough syrup with Codeine some 18 months prior to his urinalysis.  The Applicant’s Commanding Officer endorsed this NJP appeal and stated the Applicant did not provide sufficient evidence to show unknowing ingestion of Codeine and he was fully aware of his actions.  The Commanding Officer also contradicts to some degree the Applicant’s account of initially questioning with the Command MA.  In citing an official statement, the Applicant stated to the Command MA that he accidentally took his wife’s Vicodin and he didn’t discuss the Codeine and/or Cough Syrup until the Command MA informed him of his positive urinalysis for Codeine.  The Commanding Officer additionally highlighted the measures that he took to correct an administrative error associated with his NJP and indicated his Punitive Letter of Reprimand award was fair, just, and proportionate to the offense.  The Appeal Authority and his Staff Judge Advocate thoroughly reviewed the matters presented and denied the Applicant’s appeal.

Following the NJP appeal, the Applicant’s Commanding Officer submitted a Report of NJP and Request for Detach for Cause to Navy Personnel Command (NAVPERS) via the Applicant and the chain of command.  The Applicant endorsed this report while further stating that he did not knowingly ingest Codeine and his two NJPs for the same offense was prejudicial to his record.  NAVPERS reviewed all of the documentation associated with the report and request, and approved the Detach for Cause and required that the Applicant Show Cause for Retention.  Given this NAVPERS guidance, the command initiated administrative separation processing and the Applicant elected to submit a qualified resignation request.  The Assistant Secretary of the Navy for Manpower and Reserve Affairs accepted the resignation request and directed a General (Under Honorable Conditions) characterization of service.   

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.  

Upon review of the full record of NJP, the NDRB determined the Applicant’s issue associated with his NJP punishment award is without merit.  The Applicant’s initial NJP award of an Oral Reprimand is not permitted with the governing regulations of the Judge Advocate General Manual for Courts-Martial.  As such, the command promptly corrected this minor administrative error and awarded a Punitive Letter of Reprimand.  The NDRB found this Punitive of Letter of Reprimand did not materially prejudice the Applicant’s record as this punishment was fair and consistent with punishment given to other officers who are found guilty of Article 112a.  Furthermore, the NDRB thoroughly reviewed the record and the documentation provided by the Applicant to determine if the awarded discharge was improper and inequitable based on unknowing ingestion of a controlled substance.  The record reflects willful misconduct that demonstrated he was unfit for further service and the Applicant provided insufficient evidence to support that his actions were not wrongful and deliberate.  Therefore, the awarded discharge will remain as issued.  Relief denied.

Issue 3:  The Applicant contends his in-service and post-service conduct warrant consideration for an upgrade.

In support of this issue, the Applicant requested the NDRB consider the totality of his service and his current post-service achievement.  The Applicant is currently working as a private investigator and is seeking to further his career in law enforcement.  In addition to the aforementioned documentation provided by the Applicant, he provided excerpts of his employment evaluations and employment awards.

The characterization of service is determined by the quality of the member’s total performance of duty and conduct during the current enlistment, including the reason for separation.  Other considerations shall be given to the member’s length of service, grade, aptitude, and physical and mental condition.  Additionally, 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.  Upon full review of the record and the documentation provided for post-service consideration, the NDRB determined the awarded characterization is equitable and consistent with discharges given to others in similar circumstances.  Relief denied. 

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 (OTHER) with a corresponding separation code of BKM.  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.