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Docket No. ND06-00018

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

FOR OFFICIAL USE ONLY

 ex-BM2, USNR(TAR)
Docket No. ND06-00018

Applicant’s Request

The application for discharge review was received on 20050928.  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 20060721.  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 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:

“To whom it may concern,
I want to ask to please change my discharge to an honorable.  I served 17 faithful years of service.  Unfortunately there came a time during my service life where I became very depressed due to many reasons-including the death of 2 brothers, a best friend and my grandpa.  I’m deeply sorry for my actions & because I turned to drugs I lot my naval career.  It was by far the biggest mistake I’ve ever made.  I wish I could go back & had handled things differently.  I have since done to rehab for 28 days at Fairview Treatment Center in LA. I graduated & I still am doing outpatient treatment meetings & counseling.  I’ve come a long way & have been sober for quite some time now.  I truly regret what I have done.  I’m currently working at Burger King but I want to get a descent much better paying job and in order to do so I would need to have a good discharge. This would mean a lot to me so I can go about my life and make a living.  I’m currently living with my parents and can’t quite make it on my own because it’s hard for me to get a good job with the discharge I got.  Please, can you consider changing it - I really need this - I now realize how it’s affected my life. ”

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

The City of New York Good Conduct Certificate, dtd August 30, 2005
Character Reference ltr from J_ D. D_, Jr. dtd August 24, 2005
Character Reference ltr from Lt. P_ E. G_, FDNY (Ret), dtd September 13, 2005
Applicant’s birth registration certificate, dtd February 3, 1970
Applicant’s DD Form 214 (Member 1 and 4)
List of duty stations, military schools and civilian schools

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR	19880225 - 19880802	COG
	Active:   USNR	19880803 - 19910802	HON	RELAD
		USNR	19910803 - 19960202	HON
		USNR	19960203 - 20010214	HON

Period of Service Under Review:

Date of Enlistment:  20010215		Date of Discharge:  20040625

Length of Service (years, months, days):

	Active:    03  04  11  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  1 day
	Confinement:		 None

Age at Entry:  31

Years Contracted:  4

Education Level:  12				AFQT:  46

Highest Rate:  BM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.7 (3)			Behavior:  2.7 (3)		OTA:  3.00

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Naval Reserve Meritorious Service Medal (2), National Defense Service Medal(2)

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: 

880222:	Applicant certified understanding of the U.S. Navy Policy concerning Drug and Alcohol Abuse.

010215:	Reenlisted this date for a term of 4 years.

031103:	Competency for duty:  Applicant referred after being UA from place of duty for over 24 hour.  Applicant found not competent to perform duty.  Release to custody of EMS for transport to DePaul Hospital.

031104:	Medical evaluation at DePaul-Tulane Behavioral Health Center by R_ B. D_ M.D.
	AXIS I: Cocaine abuse.
	Major depressive disorder, single episode, moderate in severity in partial remission versus depressive disorder not otherwise specified.
	Bereavement.
	AXIS II: Personality traits including self-defeating.
	AXIS III: None.
	AXIS IV: Occupational problems.
	AXIS V: Current GAF 55 to 61; highest in last year 61.
	At the time of dictation, I am discharging D_(Applicant) because she does not think she has a problem.  The treatment team, the therapist that evaluated her, Dr. W_ also feel that there is more to the story.  She is not that forthcoming.  We will refer her back to the Naval Clinic.  They can accomplish further outpatient psychological workup and see C_ W_.  I am not treating her at this time.  She has been compliant with treatment.

031106:	ABPN Psychiatrist, R_ B. C_
	Applicant admitted from the Inpatient Drug Treatment Program at the Paul where she refused services despite her ongoing cocaine use, which she says she uses both for the purposes of ablating the emotional pain of the various losses as well as her purpose of trying to kill herself.
Impression:
	AXIS I: 1.  Dysthymia, rule out major depression.
	2. Cocaine abuse, rule out dependence.
	AXIS II: Rule out personality disorder, especially cluster B.

031108:	Medical evaluation by F_ R_, Psychology Resident and J_ C. H_, PH.D, Clinical Psychologist.
	AXIS I: Adjustment disorder with depressed mood and anxiety, PTSD.
	Cocaine abuse.
	AXIS II: Borderline personality disorder.
	AXIS III: Deferred to medical staff.
	AXIS IV: Difficulty accessing adequate psychiatric assistance.
	AXIS V: GAF = 45 (current); GAF = 50 (highest last 6 months, by report.)
	Recommendation: 1. D_ S_(Applicant) would benefit from continued psychiatric treatment, and adherence to al of her psychiatrist’s recommendations, especially as they pertain to psychopharmacological treatment.
	2. Ms. S_(Applicant) would benefit from intensive cognitive behavioral therapy, focused of her depression and anxious symptoms.
	3. Ms. S_(Applicant) would benefit from characterlogically oriented therapy in order to facilitate a reorientation to interpersonal relationships, and her approach to fulfilling relationships.  Dialectical behavior therapy seems indicated at this time, as she may benefit from the intensive social skills training and group therapy utilized by that system.

040114:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as other than honorable by reason of misconduct-drug abuse.

040114:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board and obtain copies of documents that support the basis for the proposed separation.

040115:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 040112, tested positive for cocaine.

040209:	Applicant admitted to DePaul for rehabilitation upon detox protocol.  Assessment: Cocaine abuse/not fit for duty.  Admin sep/Captain’s mast pending.

040212:	81st Medical Group (Outpatient) Clinic social worker Progress notes:  ADSM was admitted to DePaul for chemical dependency program on 2/9/04.  Referred by medical, LCDR O_.  Received clinical from A_ at DePaul:
	AXIS I: Depressive disorder NOS,  PTSD, cocaine dependency.
	Plan: Keep ADSM in program for 30 days.  Command plans to separate after completion of program.  CM to follow.

040227:	Discharge/Transition patient on 040227.
	AXIS I:  MDE (recurrent) moderate, PTSD, cocaine dependency.
	AXIS II:  Deferred.
	AXIS III: None.
	AXIS IV: Moderate.
	AXIS V:  50
Estimated length of stay in next level of care:  1 to 2 weeks.
Psychiatric Aftercare:  Partial hospitalization Program.  Tuesday 3/2/04, 9 am.

040310:	NJP for violation of UCMJ, Article 112a:
	Specification: In that Boatswain’s Mate Second Class D_ A. S_(Applicant), U.S. Naval Reserve (TAR), Naval Air Station, Joint Reserve Base, New Orleans, on active duty, did, at or near New Orleans, Louisiana, on or about 5 January 2004, wrongfully use cocaine.
	Additional Charge: Violation of UCMJ, Article 112a:
	Specification: In that Boatswain’s Mate Second Class D_ A. S_, U.S. Naval Reserve (TAR), Naval Air Station, Joint Reserve Base, New Orleans, on active duty, did, at or near New Orleans, Louisiana, on or about 9 February 2004, wrongfully use cocaine.
	Award:  Extra duty for 30 days.  No indication of appeal in the record.

040312:	Outpatient, Clinic Social Worker Progress Notes:  ADSM continues treatment at DePaul Chemical dependency IOP.  Going to AA meetings, needs a sponsor, went to Mast yesterday-refer to board to see if detainable, MC doubts she will get it.  She came to family meeting last night.  Remain in IOP until next Friday, the 19^th.  Spoke with MC T_-gave update.  CM continues to follow.

040513:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, that such misconduct warranted separation, and recommended discharge under other than honorable conditions.  [Extracted from Commanding Officer’s letter dated 040616.]

040616:	Applicant found qualified for separation.

040616:	Commanding Officer, Naval Air Station, Joint Reserve Base, New Orleans, LA, recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  Commanding Officer’s comments:  “Having reviewed the Administrative Board’s decision, I agree with the findings of misconduct.  While I have great sympathy for the tragedies that have occurred in BM2 S_(Applicant)’s life, her behavior has been inconsistent with Navy’s core values and in violation of Navy’s “Zero Tolerance” drug policy.  Despite counseling at both military and civilian medical facilities, her behavior remains unacceptable and she can no longer be trusted by her superiors and peers.  She does not adhere to the rules and regulations of this command or the United States Navy.  She is unwilling to conduct herself in a manner conducive to good order and discipline.  An administrative discharge is warranted in this case.  Therefore, I concur with the Administrative Board and recommend that BM2 S_(Applicant) be separated from the naval service with an Other Than Honorable discharge.”

040617:	Commander, Navy Region South, directed the Applicant's discharge under other than honorable conditions by reason of misconduct - drug abuse.

Service Record contains a partial Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20040625 by reason of misconduct due to drug abuse (A) with a service characterization of under other than honorable conditions.  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 Board presumed regularity in the conduct of governmental affairs (D).

The Applicant desires an upgrade based on her “17 faithful years of service.”  When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service under honorable conditions.  Characterization of service as under other than honorable conditions 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.  There is clear evidence in the Applicant’s service record that she used illegal drugs.  Indeed, the Applicant received nonjudicial punishment on 20040310 for violation of UCMJ Article 112a (2 specifications) Wrongful use of controlled substance (cocaine).  Evidence of such misconduct may be used to characterize a member’s discharge as under other than honorable conditions.  The Applicant’s conduct, which forms the primary basis for determining the character of her service, falls well below that required for an honorable characterization of service.  An upgrade to honorable would be inappropriate; therefore relief is denied.

The Applicant is advised 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 or enhancing employment and educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  Since these issues do not serve to provide a foundation upon which the Board can grant relief, relief on this basis is not warranted.

While 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 service, the Board 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.  Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge.  The Applicant submitted a criminal records check and two character references for consideration.  The Applicant’s efforts need to be more encompassing to include evidence of continuing educational pursuits, verifiable employment records, documented community service, and credible evidence of a substance free lifestyle.  At this time, there is not sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in the characterization of discharge.  And so, no relief is granted on this basis.

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 post-service accomplishments or any other evidence related to the discharge at that time.  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.  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, 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