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

 ex-SA, USN
Docket No. ND04-01139

Applicant’s Request

The application for discharge review was received on 20040707.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to hardship.  The Applicant requests a personal appearance hearing before the board in the Washington National Capital Region.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.  The Applicant listed the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050224.  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character and reason for 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, as stated

Applicant’s issues, as stated on the application:

1.  “Dear DRB:

I’m Respectfully requesting an upgrade to Honorable, in order that I may re-enlist into the Navy.  The following issues are the reasons I believe my discharge should be upgraded to Honorable.  If you disagree, please explain in detail why you disagree.

The presumption of regularity that might normally permit you to assume that the service acted correctly in characterizing my service as less than honorable does not apply to my case because of the evidence I am submitting.  My ability to serve in the navy was impaired because of marital and medical problems.  Be advised that I enlisted in the navy in April 2001.  I did my boot camp training in Great Lakes.  While in training, I injured the second toe on my left foot, due to my boot being too small (see medical records, attachment 1).  On July 2001 I finished my training and was on leave until August 8th 2001.  My port of call was in Virginia, where my first duty station was the USS CARR.  I was in so much pain from my left foot while at home on leave in N.Y.; I sought medical attention at the FDR Veterans Hospital in Montrose (see medical records, attachment 1).  After seeing the VA doctor, I was informed not to return to work until I was able to perform my duties.  I immediately called my ship and notified them, but I neglected to attain the name of the person that I spoke to.  I continued to be treated by the VA doctors until September 18, 2001.  Also while on leave, on July 27, 2001 I married my fiancé D_ S_.  Shortly after being married I found out that my new bride was on medication for mental and emotional problems.  She began to suffer with a severe bout of depression, which made it difficult for me to just walk away from her.

On October 12, 2001 I returned to work at the barracks in Virginia and was immediately placed on restriction for being UA.  A periodic drug test was performed and it was negative.  I did not have access to the outside world or any other area than my barracks.  After a month I was taken to my assigned ship USS CARR where I was also on restriction.  While I was at my assigned ship my wife D_ R_ informed me on several occasions that she was still suffering from depression and she needed me to take care of her.  Be advised that she was enlisted to join the Navy but because of her depression she was rejected.  She was also diagnosed hyper vigilant by her medical provider.  I notified the Master of arms that my wife was in dire need of my help and I was afraid she could suffer a breakdown or commit suicide.  Therefore I needed permission to return home to make sure she was in a stable condition and receiving proper medical attention.  I was informed that she could get medical attention in the Navy.  My wife refused to come with me because she knew I would be on a ship and she would be left alone to deal with her condition.  This made me worry about what she might do to harm her self I became torn between my duty to the navy, (which I wanted to make a career) and my commitment to my wife.  After several attempts to obtain permission to take leave I felt compelled to attend to my wife.  Out of desperation to help my wife I decided to tell my superior that I had smoke marijuana (referring to my prior use before enlistment, see attachment 2).

Back in 1998, when I first enlisted in the navy I was rejected due to marijuana use, and that was the only time I had ever used it.  In 2001 I applied again and I informed my recruiter of my prior rejection from the navy.  I was accepted and have been clean ever since 1998.  My superior officer reviewed my drug test from when I first returned to duty and found them to be negative.  Also, he knew I didn’t have access to any drugs due to being on restriction the whole time I had been back.  He asked me why did I lie and I told him, because I really need to go and see about my wife.  I believe, after I told my superior officer that, he became very annoyed with me.

At first I was informed that I was going to receive a medical discharge due to my foot condition and I signed several documents to that effect.  Two days before my separation from the navy, I was informed that I would be receiving a different type of discharge.  At that point I believe my prior history became the deciding factor to give me an: other than honorable discharge on November 21, 2001.

For the above reasons I respectfully request that my discharge be upgraded to honorable.  So, that I may re-enlist and fulfill my life long ambition to make the navy a career.

Sincerely,

J_ L_ R_ [signed] (Applicant)”

Additional issues submitted by Applicant’s representative (American Legion):

2.  “Equity Issue:  Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174D, Part V, Paragraph 503, as it pertains to post-service conduct, in assessing the merits of this application.
_______________________________________________________________________

In accordance with Title 32, CFR, Section 724.166 and SECNAVINST 5420.174D, Part I, Paragraph 1.20, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplement to the Applicant’s petition.

The Board’s attention is invited to Block 5 of DD Form 293.  We note that the Applicant failed to check a block for a characterization upgrade.  On his behalf, we ask that a change to Honorable be considered.  Please also inform him that reenlistment codes are not within the Board’s purview.

The SR is incomplete.  In particular, the discharge package is missing.  Review of the available records reflects that this former member maintained performance and conduct markings of 2.0 ITA and had 2 UCMJ violations of Articles 86 (010808-011012) and 112a (drug use).  On 011121, he was discharged Under Other Than Honorable Conditions due to misconduct as authorized by NAVMILPERSMAN, Article 1910-146.

Essentially, as noted on DD Form 293 attachment, this Applicant is requesting that his discharge be upgraded and his narrative reason be amended because marital problems resulting from his wife’s illness contributed to and mitigated his misconduct of record.  He has submitted 4 pages of additional documentation attesting to his good post-service character, hard work, educational pursuits and family involvement for consideration.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by Title 10, USC, Section 1553 and set forth in Title 32, CFR, Part 724 and SECNAVINST 5420.174D.

This case is now respectfully submitted for deliberation and disposition.”

Documentation

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

Appointment of Veterans Service Organization as claimant’s representative, dated June 10, 2004
One page from Applicant’s service record
Applicant’ s DD Form 214 (2)
Letter from Department of Veterans Affairs, undated
Twenty-two pages medical documentation, printed March 23, 2004
Character reference from R_ A. M_ dated April 5, 2004
Character reference from K_ M. W_ dated May 18, 2004
Character reference from H_ R_ dated March 31, 2004
Character reference from L_ P_ dated March 25, 2004

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	010323 - 010423	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  010424		Date of Discharge:  011121

Length of Service (years, months, days):

	Active:    00  06  29		[Does not exclude lost time]
	Inactive:  None

Age at Entry:  30			Years Contracted:  4

Education Level:  14			AFQT:  32

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (1)		Behavior:  1.00 (1)		OTA:  2.00

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  66

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:

010808:	Applicant to unauthorized absence.  [Extracted from DD Form 214, Block 29.]

011012:	Applicant from unauthorized absence.  [Extracted from DD Form 214, Block 29.]

xxxxxx:	Applicant admitted use of controlled substance to Commanding Officer.  [Extracted from Enlisted Report & Counseling Report, Block 23, Comments on Performance dtd 011120.]

011025:	NJP.  No further information found in service record.  [Extracted from Enlisted Report & Counseling Report, Block 23, Comments on Performance dtd 011120.]

011116:	Commander, Cruiser-Destroyer Group EIGHT directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

011119:	Applicant declined screening and treatment for drug dependence.

011121:	Applicant discharged under other than honorable conditions by reason of misconduct, drug abuse.

Applicant’s discharge package not contained in service record.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20011121 under other than honorable conditions by reason of misconduct due to drug abuse (A).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).    

Issue 1.  The Applicant contends that his admission of drug use refers to previously acknowledge pre-service use.  The Applicant’s contention, that he lied to a superior officer, is not supported by the evidence of record and is not sufficient to refute the presumption of regularity.  There is credible evidence in the record that the Applicant used illegal drugs.  Mandatory processing for separation is required for sailors who abuse illegal drugs.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  Additionally, the summary of service clearly documents that misconduct due to drug abuse was the reason the Applicant was discharged.  No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged.  Relief denied.

An Under Other Than Honorable Conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service was marred by nonjudicial punishment proceedings, an unauthorized absence of 66 days and drug abuse.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant contends his misconduct was the result of his medical problems and his obligation to attend to his wife.  The NDRB recognizes that serving in the U.S. Navy is challenging.  Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country.  It must be noted that most members of the Navy serve honorably and therefore earn their honorable discharges.  In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due.  The NDRB found that the Applicant's service was equitably characterized.  Relief denied.

Issue 2.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 civilian life subsequent to leaving naval service.  The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge 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.  Examples of documentation that should be provided to the Board include verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided sufficient documentation for the Board to consider.  Relief denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 33, effective 16 Jul 2001 until 21 Aug 2002, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - Drug Abuse.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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 “http://Boards.law.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:

		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