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Docket No. ND99-01248

DEPARTMENT OF THE NAVY
 NAVAL DISCHARGE REVIEW BOARD (NDRB)
                     DISCHARGE REVIEW
                   DECISIONAL DOCUMENT

 ex-MSSA, USN
Docket No. ND99-01248

Applicant’s Request

The application for discharge review, received 990924, requested that the characterization of service on the discharge be changed to honorable or general/under honorable conditions.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000529.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I was going through a substance abuse problem.  Alcohol was an every day part of my life.  Everyone was doing it, it seemed normal.  The strong stresses of sea duty strengthen my urges to swallow my problems and stresses from a beer.  Along with everything came my migraines.  I was prescribed frivol for them.  Sometimes they did not help.  I then sometimes pop them with alcohol.  More and more this became common.  My family life was deteriorating.  I could not seem to get out.  All of this started soon after my demotion.  I was promoted to the captain’s cook.  That was such an honorable position.  I had many people envious of me.  Many showed it with words and some could not believe an E-2 was doing a petty officer's job.  My skills promoted me.  I served the captain for seven months.  Meanwhile my wife was at home in Virginia pregnant and taking care of my 1 1/2-year-old son.  We had only been back 3 days and she sent in labor.  I went to be with her.  The next day the Batten went underway.  I missed ship movement.  When they came back 7 days later, I had been replaced, I was moved to the wardroom.  4 months later moved to the galley. Stuck don in the galley for 1 year.  I was told I would be rotated after 6 months, I don't believe ever. I then was not happy at all - long hours started, but that was not the problem.  I then got involved with young punks, also serving our country.  Most also involved in drinking and other things not permitted.  I finally gave in and thetas when everything went down.  My wife, whom I love, could not ever persuade me.  I just wanted to get out.  I went to the ship's doctor to tell him about my addictions, he denied my addictions.  He said it was not possible.  He yelled and curses me out.  He told me to suck it up and move on.  My problems were far worse and too far-gone to suck it up and move on. I could only see one solution and that was to use and incriminate myself.  10 months have gone by and life has been even harder on my family and myself.  I am, thanks to my wife and children, a changed man.  I want a second chance to serve my country with a clear head.  I want to educate my self and provide a good life for my family.  Regret has deeply set in and now I want to repair.  Please give me the chance.  Thank you.

Documentation

In addition to the service record, the following additional documentation, submitted by the applicant, was considered:

Statement form applicant
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Active:   None
	Inactive: USNR (DEP)	960530 - 961104	COG

Period of Service Under Review:

Date of Enlistment:  961105		Date of Discharge:  980918

Length of Service (years, months, days):

	Active:    01  10  14
	Inactive:  None

Age at Entry:  26			Years Contracted:  4

Education Level:  12			AFQT:  36

Highest Rate:  MSSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF			Behavior:  NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

Days of Unauthorized Absence:  8+ 

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events:

980223:	Applicant to unauthorized absence 1800, 23Feb98.

980225:	Applicant from unauthorized absence 0415, 25Feb98 (1 day/ surrendered).

980326:	NJP for violation of UCMJ, Article 86: Unauthorized absence.  No further information in service record.  [Extracted from CO's letter dated 1Sep98.]

980326:	Retention Warning: No further information in service record.  [Extracted from CO's letter dated 1Sep98.] 

980717:	Applicant to detox at NAVHOSP, Portsmouth, VA.

980720:	Applicant from detox at NAVHOSP, Portsmouth, VA.  Psych consults - 17Jul98:  Recommended DAPA/CAAC for Level III/ARD, ETOH rehab and recommended P/C fiornal.

980730:	Psychiatry Staff discharge progress note: Diagnosis: Alcohol dependence, with physiological dependence, Sedative-Hypnotic (barbiturate) Dependence, with physiological dependence, Sedative-Hypnotic (barbiturate) Withdrawl (resolved), Cannabia Abuse, Migraine headaches, by history.  Plan: 1. Discharge to parent command, psychiatrically fit for duty.  2. The patient is referred to his command DAPA for scheduling of Level 3.0 residential treatment.  The patient has been diagnosed with alcohol and barbiturate dependence.  While awaiting treatment, he should remain abstinent from alcohol and illicit drugs/barbiturates, attend daily AA/NA meetings and obtain a sponsor.  Following formal treatment, the patient should actively participate in a structured recovery program which includes regular attendance at AA/NA meetings.  3. The patient agrees to seek immediate care if his conditions declines or suicidal ideation recurs.  4.  The plan was discussed with the patient who concurred with it.

980806:	NAVDRUGLAB, Jacksonville, FL reports urine sample received 980728 tested positive for controlled substance.

980806:	Psychiatry Staff discharge progress note: Diagnosis: Adjustment disorder with depressed mood (resolved), Alcohol dependence, with physiological dependence, Sedative-Hypnotic (barbiturate) dependence, with physiological dependence, Cannabis abuse, migraine headaches, by history.  Plan: 1. Discharge to parent command, psychiatrically fit for full duty.  2. The patient is referred to his command DAPA for scheduling of Level 3.0 residential treatment.  The patient has been diagnosed with alcohol and barbiturate dependence.  While awaiting treatment, he should abstinent from alcohol and illicit drugs/barbiturates, attend daily AA/NA meetings and obtain a sponsor.  Following formal treatment, the patient should actively participate in a structured recovery program which includes regular attendance at AA/NA meetings.  3. The patient agrees to seek immediate care if his condition declines or suicidal ideation recurs.  4. The plan was discussed with the patient who concurred with it.

980820:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 1400, 9Jul98 until 1000, 17Jul98 (8 days/surrendered), violation of UCMJ Article 112A (2 specs): Wrongful use of marijuana.
Award:  Restriction and extra duty for 45 days, reduction to MSSA.  No indication of appeal in the record.

980820:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and pattern of misconduct.

980820:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

980901:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and a pattern of misconduct.  Commanding officer’s comments (verbatim): On 7 July 1998, MSSA (applicant) was sent to medical for depression and seen by Captain Y_, BATAAN Senior Medical officer.  A urine toxicology screening was done on 7 July resulting in a positive test for cannabinoid and butabarbital.  On 9 July 1998, MSSA (applicant) began a period of unauthorized absence.  He surrendered on board Naval Medical Center Portsmouth on or about 1000, 17 July 1998 and was admitted for alcohol abuse, depression and migraine headaches.  During his unauthorized absence, MSSA (applicant) telephoned HM1 B_, Portsmouth DAPA, referring himself for an alcohol problem.  MSSA (applicant's) wife told HM1 B_ her husband had a drug problem.  MSSA (applicant) was never seen or screened by Portsmouth DAPA before or after that telephone call.  MSSA (applicant) was released from Portsmouth at 1627 hours, 20 July 1998, with a recommendation for Level III ARD alcohol rehabilitation.  MSSA (applicant) returned on board USS BATAAN on 20 July 1998.  In accordance with BATAAN policy, enclosure (8), a urine sample was provided upon his return (U/A period 9 - 17 July).  MSSA (applicant) was a patient at Naval Medical Center Portsmouth from 23 - 30 July.  Psychiatrist diagnosis was alcohol dependence with physiological dependence; sedative - hypnotic (barbiturate) dependence, with physiological dependence; sedative hypnotic (barbiturate) withdrawal resolved; migraine headaches by history and cannabis abuse.  Upon discharge he was referred to the command DAPA for scheduling of Level III residential treatment and found psychiatrically fit for full duty.
MSSA (applicant) was a patient at Naval Medical Center Portsmouth from 31 July 6 August.  In addition to the above diagnosis, MSSA (applicant) was suffering from adjustment disorder with depressed mood (resolved).
USS Bataan was at sea from 3 - 14 August.  MSSA (applicant) was released to Amphibious Group Two on 6 August.  He checked out of the Group the morning of 17 August with orders to report to the ship immediately but failed to do so until 0800, 18 August.
MSSA (applicant) went to Disciplinary Review Board on 18 August, Executive Officer's Inquiry 19 August and Commanding Officer's Nonjudicial Punishment on 20 August.  MSSA (applicant) continues to violate the UCMJ despite efforts from the command to help him.  He went U/A immediately following DRB and XOI.  While serving restriction awarded at NJP, I allowed him to leave the ship for 6 hours to ensure the safety of his family due to the hurricane warning.  During that time MSSA (applicant's) neighbor called the ship stating he was arguing with his wife and consuming alcohol.  Upon return to the ship he was given a breath analysis indicating a reading of .017, violating Article 92 - Failure to obey a lawful order by the Commanding Officer by consuming alcoholic beverages while in a restricted status.  The following day, 26 August, MSSA (applicant) violated UCMJ Article 134 - Restriction breaking by leaving the ship.
I fully support the Navy's 'Zero" Tolerance policy and MSSA (applicant's) conduct has been unacceptable.  MSSA (applicant) will be sent to ARD Level III for treatment; however, his misconduct can not and will not be tolerated.  MSSA (applicant) admitted to both specifications of marijuana use at Commanding Officer's NJP.  In accordance with reference (b), administrative action, including separation under other than honorable conditions, may be taken against the member for drug abuse occurring either before or after self-referral, if based upon independent evidence.  Based on MSSA (applicant's) testimony at NJP and his two positive urinalysis', I believe his use of marijuana was before and after self-referral.  He waived his right to consult with counsel and to request an Administrative Board on 20 August 1998.  Accordingly, I recommend that MSSA (applicant) be separated from Naval Service based on misconduct due to drug abuse and misconduct due to a pattern of misconduct and that the characterization of service be Other Than Honorable.

980903:	Commander, Amphibious directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 980918 under other than honorable conditions for misconduct due to drug abuse (use) (A).  The Board presumed regularity in the conduct of governmental affairs (B).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

The applicant’s issue (a personal statement) was non decisional.  It introduced matters of mitigation and circumstances surrounding his misconduct.  The discharge was proper and equitable.  Relief is not warranted.

The following is provided for the applicant’s edification.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge.  The applicant must be aware that there is no law or regulation which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, may be considered by the NDRB.  Additionally documentation of the applicant’s sobriety provide substance to the applicant’s case.

The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is highly recommended.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 Dec 97 to 19 May 99, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - Drug Abuse.

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

PART IV - INFORMATION FOR THE APPLICANT

If you believe that 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 Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive 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 Directive 1332.28 and other Decisional Documents by going online at "afls14.jag.af.mil".

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX:  A6600/A9319/A9309/A9217/A9211/A9221