, ex- LSSA, 

Current Discharge and Applicant’s Request

Application Received: 20201113
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: NONE REQUESTED
Reentry Code change to: RE-1

Summary of Service

Prior Creditable Service:
Inactive:			Active:	 

Period of Service Under Review:
Date of Enlistment:  20120911	Age at Enlistment:  
Period of Enlistment:  4 Years   Extension
Date of Discharge:  20160204	Highest Rank/Rate:  LS3
Length of Service:  03  Year(s)  04  Month(s)  24  Day(s)
Education Level:  12	AFQT:  60

Evaluation Marks (# of occasions):  Performance/Proficiency: 3.25 (8)   Behavior/Conduct: 2.63 (8)   OTA: 3.13 

Awards and Decorations (per DD 214):	NDSM MUC GWOTSM EAWS 

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

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

NJP:  2
	
	[EXTRACTED FROM EVALUATION DTD 20151018]
- 20150430:	Article 91 (Insubordinate conduct toward warrant, noncommissioned, petty officer) 
	Article 92 (Failure to obey order, regulation)
	Article 95 (Resisting apprehension, flight, breach of arrest, escape)
	Article 107 (False official statements)
	Article 134 (General article)
	Awarded: RIR     Suspended:  RIR   

	[EXTRACTED FROM EVALUATION DTD 20151018]
- 20151018:	Article 92 (Failure to obey order, regulation) 
	Article 112a (Wrongful use, possession, manufacture or introduction of controlled substance)
	Awarded: RESTR EPD FOP RIR    Suspended:      

NDRB Documentary Review Conducted (date):	20161128
NDRB Documentary Review Docket Number:	ND16-00764
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 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.	The Applicant contends his discharge is improper and inequitable.

Discussion

Date:  20210216		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 91 (Insubordinate conduct toward warrant, noncommissioned, petty officer) 
Article 92 (Failure to obey order, regulation)
Article 95 (Resisting apprehension, flight, breach of arrest, escape)
Article 107 (False official statements)
Article 134 (General article)

Article 92 (Failure to obey order, regulation) 
Article 112a (Wrongful use, possession, manufacture or introduction of controlled substance)

Issue 1:  The Applicant contends his discharge is improper and inequitable.

In support of this issue, the Applicant stated his discharge was not in accordance with Naval instructions.  However, the Applicant did not provide any supporting arguments for this assertion.  The Applicant additionally stated that there was insufficient evidence to support his separation and at the time of his alleged misconduct, he had a negative urinalysis for all controlled substances.  The NDRB did not any evidence of this urinalysis contained in the record, nor did the Applicant provide any documentation relating to this urinalysis.

In testimony provided to the NDRB, the Applicant explained his account of misconduct.  Specific to his first NJP, the Applicant indicated this was an Alcohol Related Incident in which he had been drinking at a bar past authorized curfew hours.  The Applicant was also without his liberty buddy and when questioned by shore patrol, he fled the scene.  Subsequent to this NJP, the Applicant described another Alcohol Related Incident in which his suspended punishment from his first NJP was either vacated and/or he was found guilty at another NJP.  Following this second event, the Applicant departed Bahrain to San Diego for a Substance Abuse Rehabilitation Program.  The Applicant stated that he completed a 21-day intensive outpatient program, was diagnosed with Alcohol Abuse, and during his off-time from his treatment, he denied using Marijuana.  However, the Applicant stated that he discussed with another Sailor his desire to use Marijuana while in San Diego.  The Applicant presumed this Sailor, who was also stationed in Bahrain, spoke to his command about his desire to use Marijuana.  On return to Bahrain, the Applicant was questioned by Naval Criminal Investigative Service (NCIS) and he recalled telling the investigator that he smoked Marijuana everyday while he was in San Diego.  Additionally, the Applicant indicated that part of the course of this investigation, a grinder and roller was found in his barracks room and this material was incorrectly perceived to be drug paraphernalia.  At or around this same time as this investigation, the Applicant stated that he took a urinalysis that did not have a positive result for any controlled substances.  Given the admission of Marijuana use, the Applicant was subject to and found guilty at NJP.  Following NJP, the Applicant exercised his rights to counsel and requested an Administrative Separation (ADSEP) Board.  During the Applicant’s ADSEP Board, the Applicant recalled that he again stated that he smoked Marijuana everyday while in San Diego.  Today, the Applicant asserted that he only admitted to Marijuana use on multiple occasions because he was conflicted on wanting to remain in the Navy or be separated at the earliest possible opportunity.     

In review of the evidence of record, the NDRB found the Applicant served for a period of three years and five months of his four year service obligation.  During this period, the NDRB assessed the Applicant initially performed well at his first command and he was awarded the Enlisted Aviation Warfare Specialist Insignia.  Shortly after the Applicant’s transfer to Bahrain, he was subject to and found guilty at NJP for violation of Articles 91, 92, 95, 107, and 134.  The specific circumstances concerning this misconduct were not found in the record, but the NDRB accepted the Applicant’s account that this was a significant Alcohol Related Incident in which he was attempting to flee apprehension from shore patrol.  The NDRB additionally accepted the Applicant’s account that he had another Alcohol Related Incident and he was command referred to an intensive outpatient treatment program for Alcohol Abuse in San Diego.  From the Applicant’s testimony, he recalled stating in the course of an official investigation to NCIS that he smoked Marijuana every day in San Diego.  The NDRB found this admission of wrongful drug use to be sufficient evidence to support his guilty finding of Article 112a at NJP.  Following this second NJP that is contained in the record, the Applicant was notified of ADSEP processing under the basis of Drug Abuse and the least favorable characterization of service that he may receive would be Under Other than Honorable Conditions.  From this notification, the Applicant exercised his right to an ADSEP Board and was assigned legal counsel.  The ADSEP Board reviewed all available evidence and concluded the preponderance of evidence supported the basis for separation.  This Board also recommendation separation with a more favorable General (Under Honorable Conditions) characterization of service.  The NDRB noted the Applicant stated that he provided a sworn statement at his ADSEP Board and he reaffirmed that he smoked Marijuana every day while he was in San Diego. 

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.  

The government enjoys a presumption of regularity in the conduct of its affairs and the Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  The NDRB reviewed the Applicant’s service record and found no evidence to support his claim that his discharge was not executed in accordance with Naval regulations.  Furthermore, the NDRB accepted the Applicant’s testimony regarding his drug use admissions and determined his command and ADSEP Board had sufficient, compelling evidence to support the basis for his separation from service.  Although the Applicant may feel that there was insufficient evidence to support his separation, the record and Applicant’s testimony reflected willful misconduct that demonstrated he was unfit for further service.  Following a thorough review of this case, the NDRB determined the Applicant’s service was honest and faithful, but significant negative aspects of his conduct or performance of duty outweighed the positive aspects of his service record and the awarded characterization of service is warranted.  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 (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.