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Docket No. ND05-01518

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

FOR OFFICIAL USE ONLY

ex-SA, USN
Docket No. ND05-01518

Applicant’s Request

The application for discharge review was received on 20050908.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.  

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060614.  After a thorough review of the 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 of the discharge shall not change. The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to drug abuse.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application: 

“During my time in the U.S. Navy, I was stationed a board the USS George Washington CVN 73, I worked in the V-2 Division Air Department, my work center had about 68 people, 4 total females.  While working in this work center I was Sexually Discriminated, as a female airman the Navy Zero tolerance of Sexual Discrimination policy was not in forced.  The discrimination started 2 to 3 weeks on my arrival to the ship.  I reported these issues to my chain of command. 1) Telephone communication about me not being good enough to be on flight deck. 2) Strength became an issue during assignments and I would be called names with wide use of profanity 3) my personal belongings were continually stolen from my work center locker. 4) Degrading started with the 3^rd class petty officer of the 1^st class petty officer.  This lasted from September 03 to March 05.  My work history will show I maintained my job and performed my job with the best of my abilities; my evaluations have all been good.  I put in request chit to be moved to another division, Senior Chief never ran the request through the full chain of command because the Division Officer wouldn’t move anyone.  In port in Norfolk I had no friends to communicate with.  I made friends in another division were I felt accepted and was taken advantage of.  My family noticing financial problems arose, spoke with Master Chief of ship and Captain and they said nothing could be done to help me so nothing was done.  I visited Medical quite often aboard ship with problems of sleep and energy.  Upon discharge in April I felt worthless no self-esteem & no energy and no motivation.  I was admitted to VA hospital in Oakland with depression due to Military Sexual trauma.  I am still receiving treatment in Butler VA hospital.  Along with this request to have my discharged changed I have enclosed my medical records from the Oakland and Butler VA hospitals.  In conclusion I am requesting a change I my discharge to Honorable so I may continue to receive treatment for my depression from Military Sexual trauma.”

Thank you, A_ P_

Documentation

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

Medical Data from Pittsburg Medical VA (52 pgs)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20030128 – 20030625		COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20030626		Date of Discharge:  20050414

Length of Service (years, months, days):

	Active:    01  09  18  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  none
	Confinement:		  none

Age at Entry:  18 

Years Contracted:  4 

Education Level:  12				AFQT:  37

Highest Rate:  YNSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:   NA*		Behavior:  NA*	OTA:  NA*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal, Global War on Terrorism Service Medal, Global War on Terrorism Expeditionary Medal, Sea Service Deployment Ribbon.

* Not Available

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

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

Chronological Listing of Significant Service Events: 

030117:	United States Navy Illicit Behavior Screening Certificate: Applicant acknowledged Enlistment Statement of Understanding.

050324:	NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance.
	Award:  Forfeiture of $692 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

050330:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service under other than honorable conditions by reason of misconduct drug abuse.

050330:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

050331:	Commanding Officer, Naval Technical Training Center, Meridian recommended to Commander, Navy Region Southeast that Applicant be discharged under other than honorable conditions by reason of misconduct drug abuse as evidenced by all incidents in current enlistment.  Commanding Officer’s comments:  “Seaman Apprentice P_ (Applicant) reported to this command on 13 March 2005.  She appeared at Captain’s Mast on 24 March 2005, where she pled guilty and was found guilty of Article 112a (Drug Abuse), specifically Amphetamine, MDMA, and Methamphetamine use.  Her total disregard for rules and regulation clearly indicates that she has no potential for continued Naval Service.  Based on the foregoing and in accordance with reference (a), recommend that Seaman Apprentice P_ (Applicant) be separated from the Naval Service with an Other Than Honorable Discharge due to Misconduct-Drug Abuse.”

050401:	GCMCA, Commander, Navy Region Southeast directed the Applicant's discharge under other than honorable conditions by reason of misconduct drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050414 by reason of misconduct due to drug abuse (A and B) with a service characterization of under other than honorable conditions.  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 Board presumed regularity in the conduct of governmental affairs (E).

The NDRB advises the applicant that her service record is missing elements of the summary of service. In the Applicant’s case, the Board presumed regularity in the conduct of governmental affairs and that the Applicant’s discharge was regular in all respects.

The Applicant requests a change in her discharge characterization to honorable so she may continue to receive treatment for depression for Military Sexual trauma. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that she experienced military sexual trauma while in the Navy.  The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case.    The NDRB advises the Applicant that the Veterans Administration determines eligibility for post-service benefits not the Naval Discharge Review Board.  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.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  
Relief denied.

The Applicant contends that she performed her duties to the best of her abilities despite sexual discrimination, degrading professional comments, and a hostile working environment. The Board found that the Applicant's misconduct is clearly documented.  The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for violation of UCMJ, Article 112a, illegal drug use, thus substantiating the misconduct for which she was separated.  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. The NDRB advises the Applicant that certain serious offenses warrant separation from the Navy in order to maintain proper order and discipline. A violations of Article 112a, is considered a serious offense and typically warrant a punitive discharge if adjudged at a special or general court-martial. The evidence of record does not show that the Applicant should not be held accountable for her actions. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider her discharge proper and equitable.  Relief on this basis is denied.

.

The following is provided for the edification of the Applicant. 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 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 proof of educational pursuits, 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 post-service 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.  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.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 2002 until 28 April 2005, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - Drug Abuse.

B.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 112a (wrongful use of a controlled substance).

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

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

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.

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