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

FOR OFFICIAL USE ONLY

 ex-AEAN, USN
Docket No. ND06-00228

Applicant’s Request

The application for discharge review was received on 20051117.  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 20061109.  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: 

“IN 2002-2003 I FACED A LOT OF TRIALS.  THESE GREATLY AFFECTED MY SITUATION IN THOSE TIMES AND EVEN NOW.  MY MOTHER HAD JUST DIED FROM CANCER (ILLNESS HAD HER FOR A WHILE BUT I FOUND OUT CLOSE TO THE END).  SHE DIED AT 49, MY GRANDMOTHER AND HER WERE THE ONLY ONES I HAD.  2003 LEFT FOR FIRST DEPLOYMENT IN JANUARY, COMMAND TREATED ME AS A LIABILITY, WE GOT BACK IN SEPTEMBER, CURRENT RELATIONSHIP AND LIVING SITUATION WERE NOT ACCEPTABLE.  THROUGH ALL THIS, I STILL MANAGED TO STAY IN SCHOOL AND MAINTAIN A 4.0 GPA, GET MY EAWS, MAKE 3RD, AND MAINTAIN A CLOSE RELATIONSHIP WITH MY GRANDMOTHER…AND NOW 2005 THEY WANT TO PROCESS ME OUT FOR SOMETHING THAT “SUPPOSEDLY” HAPPENED IN 2003 (A TIME WHERE I DON’T THINK ANYONE IN MY SITUATION WOULD HAVE BEEN IN BETTER SHAPE).  I DIDN’T WANT TO GET OUT AND LIFE HAS A WAY OF MAKING PEOPLE MISERABLE—EVERYTHING HAPPENS FOR A REASON, I JUST DON’T THINK THAT ONE SHOULD SETTLE FOR SOMETHING THAT CAN BE CHANGED.  ALSO, THE PROCEDURE USED TO GET ME TO WAIVE MY RIGHTS AND THE FACT THAT THE RULES FOR PROCESSING WERE NOT BE APPLIED TO ME, PROVES TO BE A VERY DISTASTEFUL ACTION, AND THE TREATMENT WAS UNFAIR AND UNDULY TOWARDS ME.  BUPERS ONLY NEEDS SOMEONE TO CORROBORATE THIS INFORMATION TO HAVE A CASE TO RECEIVE SOMEWHAT BETTER TREATMENT (AND BENEFITS).”

Documentation

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

Ltr from Applicant, dtd July 11, 2005  (4 pages)
Ltr placing Applicant on Light Duty, dtd September 04, 1998
Ltr frm M. A. T_, CDR MC, USNR, Staff Orthopedic Surgeon, dtd October 14, 2004 Ltr frm M. A. T_, CDR MC, USNR, Staff Orthopedic Surgeon, dtd December 16, 2004
Medical record entry, dtd December 14, 2004
Enlisted Qualifications History frm service record
American Red Cross regarding emergency travel assistance, dtd July 28, 2002
Ltr frm Commanding Officer, Sea Control Squadron Three Three, dtd April 22, 2004
Ltr frm Commanding Officer, Naval Air Technical Training Center, dtd May 9, 2002
Evaluation Report & Counseling Record, for performance frm May 14, 2002 to August 31, 2002
Evaluation Report & Counseling Record, for performance frm February 22, 2002 to May 13, 2002
NATTC Pensacola AEA1 School PRT data, dtd May 06, 2002
Record of Counseling, dtd November 10, 2001  (3 pages)
Verification of Military Experience and Training  (5 pages)
Administrative Separation Processing Notice, dtd Jan 12, 2005
MILPERSMAN 1910-146, dtd August 22, 2002  (page 5 of 5)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20010621 - 20010904	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20010905		Date of Discharge:  20050130

Length of Service (years, months, days):

	Active:    03  04  26  
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  21

Years Contracted:  4 (12-month extension)

Education Level:  12				AFQT:  84

Highest Rate:  AE3

Final Enlisted Performance Evaluation Averages (number of marks)*:

Performance:  3.0 (1)	 	Behavior:  3.0 (2)		OTA:  3.0

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal (1) Battle “E” Award (1), Sea Service Deployment Ribbon (1).

* Evaluations not included in record.  Averages calculated using two evaluations provided by Applicant.

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: 

010621:	Pre-service waivers for alcohol abuse and for 11 “Chart A’s” and 4 “Chart B’s” granted.  

021227:	Naval Medical Center San Diego Substance Abuse Rehabilitation Program

Treatment summary
Start date: 09 December 2002	End date: 27 December 2002
Initial Diagnosis:				Final Diagnosis:
Alcohol Abuse	Alcohol Abuse
Nicotine Dependence	Nicotine Dependence in Early Full Remission

DEMOGRAPHIC AND REFERRAL: The patient is a 22-year-old, single African American female, with one year and four months of active duty service.  The patient was referred to SARD by command due to a civilian DUI on 02 October 2002, BAC .19.

SUBSTANCE USE HISTORY:  The patient was screened on 30 October 2002 and disclosed that she began a regular pattern of alcohol use at age 18, a 1/5th of Mad Dog 20/20 and one 22oz beer one time a week.  The patient’s pattern of alcohol use is currently two l2oz beers, one to two Long Island Iced Teas, and a ½ a pint of vodka two times a week.  The patient met DSM IV criteria for Alcohol Abuse; see patient’s medical record.  The patient disclosed driving while under notable influence of alcohol on more than one occasion within the last twelve months, substance use in hazardous situations.  The patient has no prior history of substance abuse treatment or withdrawal. The patient stopped smoking on 30 October 2002 and has been successful in abstaining from nicotine use to this date.  A Licensed Independent Practitioner (LIP) diagnosed patient with Alcohol Abuse and Nicotine dependence on 30 October 2002.

PATIENT PROBLEM AREAS IDENTIFIED IN TREATMENT:

1. “I drank the night of my DUI due to being informed of my mothers condition.  I dealt with the situation in the wrong manner.  I have not drank since the 20th of October and at this time have no future plans to.”

2. The patient is bereaving due to the loss of her mother from cancer in October 2002. The patient’s brother passed in 1995.  The patient is also continuing to grieve over loss of her brother.

PROGRAM PARTICIPATION AND CONDITION UPON DISCHARGE: The patient satisfactorily completed three weeks of treatment, the first two in the Outpatient Program and the final one in the Intensive Oupatient Program Phase One.  The patient’s treatment consisted of group therapy, individual counseling, skills building workshops, educational classes, family assessment and attendance at AA meetings.  The patient was seen by the Family Program Counselor Intern to assess family needs.  The patient was extended one week in the Intensive Outpatient Program due to the patient’s own concerns over her alcohol use.  The patient has benefited during her one-week extension.  The patient does not plan to drink after treatment.  Upon discharge, the patient appeared motivated to continue working a program of abstinence and participating in formal aftercare.  The patient has the awareness to consume alcohol responsibly if she chooses to do so in the future.  Her insight and self—awareness improved and he was successful in discovering alternative behaviors to drinking irresponsibly.

RECOMMENDATIONS FOR AFTERCARE/CONTINUING CARE: In accordance with OPNAVINST 5350.4C. AEAN C_ (Applicant) should participate in a command-monitored program for a period of 12 months.

1. AEAN C_ (Applicant) should meet with the Command DAPA on a monthly basis.
2. AEAN C_ (Applicant) should participate in an After Care Program with periodic review at FFSC N_ on Fridays from 0800-0930.
3. AEAN C_ (Applicant) should attend Grief Groups. There is a Grief Group at MCRD on Mondays from 1300—1430 that AEAN C_ (Applicant) may attend. POC is LT M_ at MCRD BMC.

030430:	NJP for violation of UCMJ, Article 86: Unauthorized absence
	Award:  Forfeiture of ½ pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2 (suspended).  No indication of appeal in the record. 

030517:	USS CARL VINSON (CVN 70) Medical Department, W. O. Y_, LT, MC, USNR, Flight Surgeon:  Patient reports conflict with co workers, especially supervisors, since enlistment admits that current conflicts are due in part to her “ attitude.”  Patient currently on SARP program and liberty restriction due to ETOH incident and UA.  Patient also complains daily ---- and various body aches and pains.  Patient reports that NSAID’s and previous Motrin have had no effect.  Patient complaints seem most likely psychosomatic.  HA may be tension type.  Patient refuses to take responsibility for her actions.  Will initiate several weekly counseling appt. and continue evaluation.  Follow-up 1 wk.  Consider psych evaluation to follow-up.

030522:	USS CARL VINSON (CVN 70) Medical Department, W. O. Y_, LT, MC, USNR, Flight Surgeon:  Follow up regarding occupational stress.  Reports no improvement in relations with coworkers/supervisors.  Still followed by substance abuse program and will see chaplain later today.  Patient outlines short and long-term goals but lacks insight into how current decisions may endanger those goals.  Patient continues to not acknowledge responsibility for current conflicts.  

030724:	USS CARL VINSON (CVN 70) Medical Department, W. O. Y_, LT, MC, USNR, Flight Surgeon:  Presents for follow up regarding left wrist pain.  Reports no improvement in symptoms with Motrin/rest and new symptom of right hand numbness and tingling which is intermittent and unpredictable.  Patient reports discontinued use of wrist splint.  
	Assessment/Plan:  Wrist pain with no history of trauma, may be symptom magnification to motivated secondary to personality disorder.
	1.  Naprosyn 500 mg ----- --
	2.  Ice, compression with ACE wrap and elevation.
	3.  If patient follow up with similar complaints: refer to PT if patient motivated to work vs refer to psych to r/o personality disorder if patient not motivated to work.

0501xx:	Applicant violated a restraining order.  Case pending (court date 17 Feb).  [Extracted from Commanding Officer’s Ltr, dtd April 19, 2005].

0501xx:	Applicant committed traffic violation.  [Extracted from Commanding Officer’s Ltr, dtd April 19, 2005].

050112:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to drug abuse.

050112:	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.

050122:	COMCARSTRKGRU THREE directed the Applicant’s discharge under other than honorable conditions by reason of misconduct due to drug abuse.

050127:	DD Form 2807-1, Report of Medical History.  Applicant answered “Yes” to question 17i:  Have you ever or do you know have:  Used illegal drugs or abused prescription drugs.  Block 29, Explanation of Yes Answers, reads:  “17i:  Methamphetamine Use – Reason for separation.”

050419:	Commanding Officer, Sea Control Squadron Three Three, informed  Commander, Naval Personnel Command (PERS 832), that the Applicant was discharged under other than honorable conditions by reason of misconduct due to drug abuse.  Commanding Officer’s comments:  “AE C_ (Applicant) tested positive on a command sweep for methamphetamine.  Her performance to date does not merit special consideration for exception from Navy Zero Tolerance Policy.  Member waived Administration Board.  Recommend immediate separation with Other Than Honorable characterization.”

Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20050130 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).

When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  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 violations of Articles 86 and 112a of the UCMJ.  The Applicant’s record also shows the Applicant was referred to substance abuse treatment for driving under the influence of alcohol, the equivalent of a violation of Article 111 of the UCMJ.  Violations of Articles 111 and 112a are serious offenses for which a punitive discharge is authorized if adjudged as part of the sentence upon conviction at special or general court-martial.  The Applicant’s misconduct is a violation of the special consideration given the Applicant at her waivered-enlistment.  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 implies that her discharge is improper because she tested positive for illegal drug use in 2003, but was not processed for separation until 2005.  The Applicant also contends that her discharge was improper because of the “procedure used to get [her] to waive her rights” and that the “rules for processing were not followed.”  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.  The evidence of record does not demonstrate that the Applicant was not responsible for her conduct or that he should not be held accountable for her actions. There is no evidence in the record, and the Applicant did not provide any documentation, to support her contention that the Applicant was not properly processed for separation by reason of misconduct due to drug abuse.   The Applicant test positive for illegal drug use, the commission of a serious offense, during the enlistment in question.  Subsequently, the Applicant was properly notified of her Commanding Officer’s intention to recommend her separation and her discharge was directed by proper authority.  Relief denied.

The Applicant contends that her problems in the Navy can be attributed to her personal trials.  While she may feel that her personal problems were the underlying cause of her misconduct, the record clearly reflects her willful misconduct and demonstrated she was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for her conduct or that she should not be held accountable for her actions.  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), 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