, ex- IS2, 

Current Discharge and Applicant’s Request

Application Received: 20200806
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: REQUESTED BUT NOT SPECIFIED
Reentry Code change to: REQUESTED, BUT NOT SPECIFIED

Summary of Service

Prior Creditable Service:
Inactive:	 	            	Active:	 20060927 - 20100926  

Period of Service Under Review:
Date of Enlistment:  20100927	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20160223	Highest Rank/Rate:  IC1
Length of Service:    Year(s)    Month(s)  27  Day(s)
Education Level:  	AFQT:  79
Deployment/Operation: 

Evaluation Marks (# of occasions):  Performance/Proficiency: 3.3 (6)   Behavior/Conduct: 3.1 (6)   OTA: 3.30 
Fitness Reports: 

Awards and Decorations (per DD 214):	NDSM GWOTSM FLoC GCM (2) NMCAM (3) MUC 

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

NJP:  

- 20150724:	Article 91 (Insubordinate conduct toward warrant, noncommissioned, petty officer) 
	Article 112a (Wrongful use, possession, manufacture or introduction of controlled substance)
	Awarded:       Suspended:    [Extracted from CO’s letter dated 20151124]   

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:	
 
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 32, effective 07 September 2010 until Present, 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.  That the Applicant’s discharge is unjust and inequitable because her command failed to consider her diagnosis of service 
     connected and unfitting Post-Traumatic Stress Disorder prior to her separation. 
2.  The Applicant contends that PTSD contributed to and affords mitigation to the alleged misconduct. 
3.  That Applicant’s discharge is inequitable due to the failure Administrative Separation Board’s failure to meet the requisite 
     burden of proof. 
4.  The Applicant contends that her discharge characterization is inequitable considering her length of service and medical 
      conditions that were incurred while serving on active duty. 

Discussion

Date:  20210420		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.

As a result of the Applicant’s claim of a mental health condition, including PTSD, TBI, or Military Sexual Trauma, and in accordance with 10 U.S.C. § 1553, the NDRB included a member who is a physician, clinical psychologist, or psychiatrist.  
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 91 (Insubordinate conduct toward warrant, noncommissioned, petty officer) 
Article 112a (Wrongful use, possession, manufacture or introduction of controlled substance)

: That the Applicant’s discharge is unjust and inequitable because her command failed to consider her diagnosis of 
              service connected and unfitting Post-Traumatic Stress Disorder prior to her separation.     

The Applicant states that her discharge is unjust and inequitable because her command failed to consider her diagnosis of service connected and unfitting PTSD prior to her separation. The Applicant’s counsel specifically cites the failure of the command to conduct a screening prior to her involuntary separation. In a thorough review of the record, to include VA records, the NDRB did not find a PTSD diagnosis, but only referenced diagnosis for anxiety and depression disorder. These diagnosis were derived from the Applicant’s claim of PTSD and insomnia, however, the medical evaluations within the record of evidence due not afford a specific diagnosis, during and post service, that substantiate PTSD.  An evaluation dated 3 February 2015, prior to discharge, that included a specific screening for PTSD stated the Applicant did not meet the diagnostic criteria for PTSD under Diagnostic and Statistical Manual of Mental Disorders. In addition the VA documentation also does not contain a PTSD diagnosis. The Applicant’s service connected disability assigned was originally for unspecified anxiety-disorder, claimed as PTSD and insomnia, but later changed to “other specified trauma or stressor-related disorder with panic attacks.”  

In addition, the Applicant’s claim that the command neglected PTSD when assessing her behavior and involuntary separation is not supported in the record. In her Commander’s recommendation for administrative separation letter to the Navy Personnel Command dated 24 Nov 2015, that supports the recommendation of the Administrative Separation Board’s findings for separation and assignment of an OTH, he specifically cites the findings of a non-emergent mental health evaluation he authorized on 13 July 2015 prior to any administrative or disciplinary hearings. Results of this assessment diagnosed an Anxiety Disorder not otherwise specified with Posttraumatic Stress Disorder. Thus the NDRB did not identify grounds to the 
Applicant’s issue associated with a PTSD diagnosis when multiple evaluations within the record provide statements that do not afford a diagnosis for this condition specifically. Relief based on this issue is denied. 

Issue 2:  The Applicant contends that PTSD contributed to and affords mitigation to the alleged misconduct. 

The Applicant contends that PTSD affords mitigation to the alleged misconduct that ultimately led to her discharge. The Applicant’s specific claim is that she suffered from PTSD and that it is this condition that provides mitigation to the alleged misconduct. The NDRB did note and review the specific mental health diagnosis within the record of evidence. While the NDRB did not identify a supporting diagnosis for PTSD specifically within the record it did account for the Applicant’s mental health diagnosis that documents an anxiety disorder. The record of evidence supports that the Applicant’s medical condition was known and identified as a factor of consideration in the disciplinary and administrative adjudication proceedings of the Applicant. Thus the NDRB did not identify any acts of ignorance on the part of the command when addressing this issue, but rather the inclusion of substantiating medical documentation and testimony in regard to the mental health issues associated with the Applicant. 

The NDRB did consider the mental health diagnoses included within the record of evidence. While the Applicant states that she did not knowingly ingest cocaine the record is absent a medical opinion that substantiates this as an associated behavior to her diagnosis of an anxiety disorder. The medical assessments also do not provide a nexus between the use of drugs and PTSD. Thus the Board in split opinion determined that PTSD was not a mitigating factor in the Applicant’s use of cocaine.  The Applicant states that she did not knowingly use cocaine and also disputes the accuracy and the validity of the urinalysis with a positive sample result associated with her. Lacking in this explanation is an effort to explain how she could substantiate her unknowing ingestion claim whether that be through witnesses or personnel who could holistically support her position. In addition the majority of NDRB members noted the lack of explanation in regard to how her mental health issues could influence her use of cocaine in order to provide some context to the mitigation vice just stating that she had no recollection of knowingly using it. The lack of a PTSD diagnosis and nexus to the use of cocaine led to a majority of the Board voting against relief based on this issue. 

3.  That Applicant’s discharge is inequitable due to the Administrative Separation Board’s failure to meet the requisite 
     burden of proof.

The Applicant contends that her discharge is inequitable due to the failure of the Administrative Separation Review Board (ASRB) to meet the requisite burden of proof that would substantiate the cause and reason for her administrative separation. Specific grievances cited by the Applicant include the ASRB’s failure to meet the threshold for the preponderance of evidence substantiating the alleged misconduct and the fact that the Board held the Applicant’s decision to not testify or answer questions against her. The NDRB could not substantiate these claims as the ASRB was convened upon a positive urinalysis sample from the Applicant which outweighs the argument pertaining to an insufficient burden of proof. While the Applicant contests the validity of the urinalysis chain of custody and existence of a sample, she does not provide any evidence or documentation to substantiate this claim, but only provides a statement. 

With regard to the accusations that the members of the ASRB held the Applicant’s decision not to testify at the administrative separation board against her, there is no proof beyond the statements made in the application. This issue was also raised by the Applicant’s counsel after the administrative separation hearing and was addressed by the Commanding Officer who found no wrongdoing with the actions and procedures of the ASRB. Proof of the Commanding Officer’s attention to the matters of deficiency raised is in the record of evidence as he stated that he found no legal or procedural errors upon looking into the claims made at the time by the Applicant’s counsel. Relief based on this issue is denied. 

Issue 4:  The Applicant contends that her discharge characterization is inequitable considering her length of service and 
               medical conditions that were incurred while serving on active duty.

The Applicant states that her discharge is inequitable as it does not reflect her complete record of service which included honorable service substantiated by outstanding performance evaluations and personal accommodations. The Applicant served on active duty from 20060927 to 20160223 for a total of 9 years and 7months. The Applicant reenlisted on 20100927 and completed a period of honorable service from her original enlistment date of 20060927 to 20100926. This period of honorable service is reflected on the Applicant’s DD214 in Block 18. 

The Applicant completed her first enlistment period with an Honorable characterization for that period of service, however, each period of enlistment is an independent obligation, and characterization of service is determined for that specific period.  Characterization of service at discharge is the recognition of a service member’s performance and conduct during a period of enlistment. The Period of Service under review began 20100927 and concluded at her discharge on 20160223. It was during this period of service that the alleged misconduct occurred and the NDRB assessed the characterization of service in relation to the entire enlistment period. During this period of service the Applicant was subject to an administrative separation board on 29 May 2014 for a positive urinalysis of Methylendedioxymethaphetamine while assigned to Transient Personnel Unit San Diego; found guilty of violation of Articles 91 and 112a on 24 July 2015 and was subject to a an administrative separation board on 23 September 2015 that recommended she be separated from the service with an OTH discharge characterization. 

Despite the Applicant’s previous period of enlistment the period of service under review included significant departures from the standards of conduct as substantiated by the violations of Articles 91 and 112a. The Board did not identify inequitable treatment as the Applicant was disciplined in a manner consistent with these levels of violations. Relief for this issue is denied.  

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 this case, the Board determined that the Applicant’s misconduct constitutes a significant departure from the conduct expected of a member of the Naval Service. In making its determination the Board thoroughly reviewed the record of evidence and determined that the Applicant’s command afforded due process and accounted for all issues associated with the Applicant’s misconduct and mental health issues. This is substantiated in the documentation supporting her adjudication of charges and administrative separation processing. Inconsistency in the position of the Applicant on the issue of whether she actually used cocaine, unknowingly ingested it or whether her use can be attributed to or mitigated by a mental health condition challenged the focus of her argument.  

The Board considered the Applicant’s overall capacity to serve; her entire military performance and conduct; her mental health diagnosis; the nexus between her drug use and mental/emotional stability; and the severity of her conduct in relation to her discharge characterization.  

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 GKK, and the reentry code shall  RE-4.  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.

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.