ex- DC3, 

Current Discharge and Applicant’s Request

Application Received: 20211110
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: NONE REQUESTED

Summary of Service

Prior Creditable Service:
Inactive:	 	             	Active:	

Period of Service Under Review:
Date of Enlistment:  20160401	Age at Enlistment:  
Period of Enlistment:   Years 17 Extension
Date of Discharge:  20201013	Highest Rank/Rate:  MASN
Length of Service:  04  Year(s)  06  Month(s)  13  Day(s)
Education Level:  13	AFQT:  50
Deployment/Operation: 

Evaluation Marks (# of occasions):  Performance/Proficiency: 3.24 (8)   Behavior/Conduct: 3.22 (8) 
Fitness Reports: 

Awards and Decorations (per DD 214):	GWOTEM GWOTSM NDSM NAVY "E" SSDR GCM 

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

SCM:    SPCM:    CIVIL ARREST:   CC:   

NJP:  1

- 20180305:	Article 92 (Failure to obey order, regulation) 
	Awarded: FOP RESRT EPD    Suspended:  NONE

Retention Warning Counseling:  NONE

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.  Naval Military Personnel Manual, (NAVPERS 15560D), Change 32, effective 07 September 2010 until 8 October 2019, 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 that his discharge is unjust as he self-reported his drug use for medical treatment and it was used 
     to substantiate his administrative separation. 
2.  The Applicant states that the misconduct that led to his discharge is mitigated by mental health issues he was experiencing. 

Discussion

Date:  20220811		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 92 (Failure to obey order, regulation) 

:  The Applicant contends that his discharge is unjust as he self-reported his drug use for medical treatment and it was used to substantiate his administrative separation.   

The Applicant states that his discharge is unjust as he self-reported his drug use during medical intake when he sought treatment for mental health challenges he was experiencing. The Applicant stated that when asked during medical questioning if he had used drugs he candidly answered the question and that he had used marijuana within the previous weeks. This input was relayed back to the Applicant’s command who then asked the Applicant if he had used marijuana to which he replied he had. Despite a negative urinalysis administered by the command the Applicant was processed for violating the service drug policy due to his admission of using a banned substance. The Applicant stated it was inappropriate for information provided for medical purposes to be used against him for disciplinary and administrative processing actions. 

The NDRB reviewed all documentation and researched the propriety of the Applicant’s issue in relation to standards and regulations. The fact that the medical provider informed the Applicant’s command of his drug use is permitted and there is a lack of regulation that states otherwise that the NDRB could reference or that the Applicant provided. While the NDRB understood the inappropriate perspective raised by the Applicant and the threat that this practice imposes on the trust military service members can place upon medical providers when seeking legitimate treatment the Board requires a violation of regulation or standard to substantiate an impropriety. Being unable to do this, the NDRB was not authorized to upgrade the discharge for reason of impropriety. 

Issue 2:  The Applicant states that the misconduct that led to his discharge is mitigated by mental health issues he was experiencing. 

The Applicant contends that his use of marijuana, for which he was administratively separated for, is mitigated by mental health challenges he was experiencing as he was attempting to find relief. Upon returning from an extended deployment the Applicant states that he was experiencing excessive anxiety and depression and that his leadership was unresponsive to his efforts to get help. Citing appeals for support and assistance from his leadership the Applicant expressed that his emotional stability had been challenged by the stress of military service and its impact on himself personally and his family. In review of the associated issues surrounding his mental health challenges the record reflects the Applicant’s efforts to attain assistance, but a lack of specific diagnosis. This frustrated the Applicant as he believed that his issues were being ignored or dismissed. Seeking comfort by spending time with family in the area of his duty station he accepted the use of marijuana on 2-3 occasions. It was this use that he would report during medical intake questioning when he sought assistance addressing what he believed to be the initiation of a breakdown. 

During questioning of the Applicant’s hearing he stated that the marijuana use was not done specifically as an effort to self-medicate. Rather it was efforts to be amongst family members and seeking comfort from their support and company that introduced the use of the marijuana. The Applicant stated that he knew his acceptance of smoking marijuana was wrong. The context provided to the Board did not reflect use for the specific purpose of self-medication, but more so use in a recreational manner given it was used amongst others at family gatherings. While the Applicant stated his efforts to be amongst family were to assist with his mental health and balance, he did not convey a context that expressed he used marijuana as a desperate attempt to seek relief or self-medicate. His use was willful as it was done with a wrongful understanding. 

Given the Applicant’s complete record of service the NDRB found that his Applicant afforded leniency when processing him for administrative separation. Leniency was identified in the command’s assignment of a General discharge as this characterization accounts for positive aspects of service. In addition the command did not seek additional disciplinary action through NJP where punishments can be imposed.  In view of the Applicant’s complete record the Board determined the assigned discharge was consistent with to other situations of similar circumstance. During the Applicant’s tenure of active service he was subject to misconduct that led to a reduction in rank and his drug use mandated administrative processing. In recognition of the Applicant’s contributions and achievements the NDRB assessed the General discharge assigned to be appropriate. Relief 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. 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. The Board considered the Applicant’s overall capacity to serve; his entire military performance and conduct; his mental health challenges; the nexus between his drug use and his mental/emotional stability; and the severity of his conduct in relation to his discharge characterization.  Consequently, the Board found the assigned characterization of service to be appropriate. 

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.  

Because the Applicant claimed mental health was a factor in their discharge, the Board reviewed the Applicant’s case in accordance with 10 U.S.C. § 1553, and pursuant to the Kurta Memo and other applicable regulations and guidance, including the Wilkie Memo.  Under the Kurta Memo, “[m]ental health conditions, including PTSD; sexual assault; and sexual harassment inherently affect one’s behaviors and choices causing veterans to think and behave differently than might otherwise be expected.”  Although, “[l]iberal consideration does not mandate an upgrade, [r]elief may be appropriate … for minor misconduct commonly associated with mental health conditions … and some significant misconduct sufficiently justified or outweighed by the facts and circumstances.”  Additionally, “substance seeking behavior and efforts to self-medicate symptoms of a mental health condition may warrant consideration.”  However, “[p]remeditated misconduct is not generally excused by mental health conditions, including PTSD; TBI; or by a sexual assault or sexual harassment experience.”  Therefore, “Review Boards will exercise caution in assessing the causal relationship between asserted conditions or experiences and premeditated misconduct.” See USD (P&R) Memo, “Clarifying Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modification of their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment” 25 August 2017 (“Kurta Memo”).

The review of discharges pursuant to the Kurta Memo and its other applicable regulations/guidance generally involves four questions: a) Did the veteran have a condition or experience that may excuse or mitigate the discharge; b) Did that condition exist/experience occur during military service; c) Does that condition or experience actually excuse or mitigate the discharge; and d) Does that condition or experience outweigh the discharge?  

In this case, the Board found that: a) the Applicant did have a condition/experience that mitigated the discharge; b) the condition existed during military service; c) the condition/experience did not mitigate the underlying basis/misconduct for the discharge; and d) the condition/experience did not outweigh the Applicant’s assigned Discharge Characterization.  

MEDICAL BOARD MEMBER OPINION 

1.	Does the available record reasonably support PTSD (or other boarded mental health condition) existed at the time of applicant’s military service?	Yes – Adjustment Disorder (military); Major Depressive Disorder (VA)	
2.	A.	Were these conditions present at time of misconduct?	Yes	
	B.	Were these conditions mitigating for the misconduct?	PENDING PAH	
3.	Were all required mental health and/or medical evaluations conducted in accordance with regulations, prior to the administrative separation of the applicant?	Yes	
4.	Medical board member comments:	Reviewed the Applicant’s treatment and service records in addition to personal appearance testimony on 11 AUG 2022.

The Applicant contends that undiagnosed mental health conditions mitigate his misconduct.

After reviewing the totality of the information, I make the following notes/conclusions:
-	The Applicant had significant mental health issues starting with his service in the Army National Guard.  It appears interpersonal issues (father) caused a severe-enough emotional response to end the Applicant’s contract.
-	The Applicant admitted to a three-day psychiatric hospitalization in the intra-service period of 2012 – 2016.  Knowledge of this hospitalization in the enlistment process would have prohibited the service member from re-entering the military.  It’s unclear what was disclosed to the recruiter and at the MEPS physical (documents not available). 
-	The Applicant sought formal mental health evaluation in the weeks after his first NJP (March 2018) and was diagnosed with an adjustment disorder at NMCP.  The Applicant was set up for group therapy during this visit but no additional therapy was conducted. 
-	The Applicant was diagnosed with obstructive sleep apnea shortly after his adjustment disorder diagnosis and placed on a CPAP machine.  Given the circumstances of his NJP (asleep on duty), it’s unclear if this information was considered by his commanding officer.
-	After reporting onboard the USS LASSEN and deploying for an extended period between September 2019 and May 2020, the Applicant suffered further mental health deterioration in the form of family separation and occupational stressors.  This culminated in a suicidal attempt vs. gesture in March 2020 (overdose).  COVID-19 precautions prevented MEDEVAC during deployment so the Applicant was retained onboard.  
-	After returning from deployment, the Applicant sought assistance from the NH Jacksonville (Mayport) Mental Health Department, during which time he admitted to using marijuana on the weekends.  The Applicant states he was not informed of the DODI 6490.08 stipulation for sharing evidence of drug use with his commanding officer.  Statements made at the personal appearance hearing concerning the drug use were more consistent with recreational rather than self-medicating use.

Conclusions:
1.	The command’s legal use of statements made by the Applicant to psychiatry concerning drug use was proper, though not ideal.
2.	The Applicant’s mental health condition was neither severe nor incapacitating as to prevent him from making informed decisions about using illicit substances.  
3.	Recreational drug use doesn’t qualify under liberal consideration guidelines.  I do not find a sufficient nexus to mental health to mitigate this use.
4.	The command afforded some mitigation by separating the Applicant with a GOHC rather than OTH conditions.

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 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 with a corresponding separation code of HKK, 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.

ADDENDUM:  Information for the Applicant

Additional NDRB Reviews: After receiving a NDRB Document Review, an Applicant remains eligible for a Personal Appearance/Telephonic Hearing if the application is received by the NDRB within 15 years of the Applicant’s date of discharge.  The Applicant can provide documentation to support any claim(s) related to their discharge as well as evidence of post-service accomplishments.  Representation at a personal appearance hearing by an Attorney (or Advocate) 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.  However, if you have been discharged for more than 15 years, already had a personal appearance hearing, or otherwise exhausted your opportunity to be heard by 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.

Appeal Procedures on NDRB Decision: If you contest the NDRB’s decision in your case AND you already contested the NDRB’s previous decision at a Personal Appearance Hearing or otherwise exhausted your opportunity before the NDRB (or it has been more than 15 years since your discharge), 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.  The BCNR is the highest level of administrative review within the Department of the Navy/Marine Corps to correct errors or injustices to member’s records.

Complaint Procedures on Format: If you believe the decision in your case is ambiguous, 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 (JSRA), OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  You should read Enclosure (5) of the DoD Instruction 1332.28 before submitting such a complaint.  This complaint procedure does not permit a challenge on the merits of the NDRB’s decision; the JSRA is designed solely to ensure that the NDRB decisional documents meet applicable requirements for clarity and responsiveness.  Therefore, if you are contesting the merits of the NDRB’s decision and already had a NDRB personal appearance hearing or otherwise exhausted your opportunities before the NDRB, the Applicant may appeal/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 [VA] Benefits: The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB.  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, equity, and clemency of a discharge.  Consequently, the Applicant should petition the VA, which determines eligibility for post-service benefits.  The VA conducts its own determination of eligibility based on service records and input from an Applicant upon their request.  Therefore, if the NDRB grants a change to a discharge, the NDRB will notify the Commander, Navy Personnel Command or Commandant of the Marine Corps that the DD 214 be corrected as appropriate; however, it is the Applicant’s responsibility to ensure these changes are incorporated into the record by the respective Service Headquarters.  Further, it is the Applicant’s sole responsibility to submit these changes to the VA for a determination of eligibility for VA Benefits.  Finally, the Applicant should refer to the Veterans Administration website (https://www.va.gov/) for information regarding VA benefits and healthcare.  Additionally, to find the nearest VA office to receive assistance with determining VA eligibility/access, the Applicant should refer to https://www.va.gov/find-locations.

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.  If the Applicant’s claim of 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.  

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 that 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.