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Docket No. ND06-00264

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

FOR OFFICIAL USE ONLY

 ex-ATAR, USN
Docket No. ND06-00264

Applicant’s Request

The application for discharge review was received on 20051130.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions).  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 20061005.  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 and attached document/letter:

“My discharge was inequitable because my first self-referral for drug and alcohol treatment went unanswered and I was sent to my permanent duty station.  Had I been given treatment at that time, I may have been able to cope better with sea duty and the separation from my family.  Depression after returning from a WEST-PAC and Operation Desert Shield led to more drug use and my second self-referral.  This referral was adjudicated in lieu of administrative action.  I was separated 2 years after the first and 1 year after the second self-referral.  Thus, the narrative reason for separation should not be misconduct.  The guidelines for self-referral at that time allowed for treatment and/or general separation.  Because of the inaction of VS-41 and CV-63 DAPA, my problem was never addressed and I was subsequently punished.  What should have been an administrative action became judicial, resulting in lowering of rank from E-3 to E-1 and 30 days time in confinement.  I also lost my GI Bill benefits.
I am requesting Board action to upgrade my discharge to Honorable for 3 reasons:
1.  I acted in good faith in my first referral; treatment was denied and I was shuffled to my PDS without help.  I went on to serve honorably during Operation Desert Shield;
2.  I acted in good faith in my second referral and was not afforded treatment or administrative action, hut punished with a reduction in rank and confinement for 30 days, a discharge under other than honorable conditions, and loss of benefits.
3.  Had I been given the opportunity to either get treatment and complete my enlistment or be administratively discharged, I would not have received a discharge under other than honorable conditions.

Remarks as stated on the application:

I am deeply remorseful and regret that I did not fulfill my service obligation.  I joined the Navy with a high degree of energy and motivation.  I was an outstanding sailor, being selected as the honor recruit for Company C030 at NTC Orlando, and scoring in the top 5% of each of my service schools.  I had a career plan to make E-7 in six years.
I am not sure what went wrong.  I got married and was expecting my first child when I self-referred for the first time.  I was not excited about the prospect of leaving for a WEST-PAC cruise and turned to drugs and alcohol to cope with the mental anxiety.  The anxiety never subsided, and after the WEST-PAC’, I needed to self-refer again.
Since leaving the Navy, I have strived to be a productive member of society.  I started a career in construction management and have worked for several firms and received numerous promotions.  I have remained married for almost 15 years, and supported my wife completing her BA and MA degrees, completed my BS degree in management, and I am working on an MBA.  I have held many positions of responsibility including vice president of my home-owners association, and vice president of the Central Florida chapter of the American Subcontractors Association.  I have worked with my teenage son in developing character and honor, encouraging him in Boy Scouts.  He has just earned the rank of Life Scout, and I will support him in his work toward Eagle Scout.  I attained a 4.0 average in completing my degree, providing an example to my kids for excelling in their studies.  I am active in civic and professional organizations such as the Fraternal Order of Eagles, the Masons, the Shrine, ABC, AGC, and the Association of Wall and Ceiling Contractors International.
The events that occurred were very unfortunate and very uncharacteristic of me.  I would do anything to go back and do things different.  However, I am unable to do that.  Although, I have lived my life in such a manner in an attempt for some kind of atonement for my actions.  Please consider my request for an upgrade of my discharge.”

“To Whom it May Concern:

Please consider my application for review of my discharge from the United States Navy. First, let me state that I am deeply sorry for my actions. I regret not being able to fulfill my obligations for which I swore to do so. Since my discharge, I have lived my life in an honorable manner, contributing greatly to society and my community.

I believe that my separation under other than honorable conditions from the Navy could have been avoided, or at least, I should have been discharged at a different level based upon the following facts.

I joined the Navy with great ideals and a plan-make Chief(E-7) in six years. I was well on my way to accomplishing that task having earned E-3 as a result of being selected Honor Recruit of my boot camp Company C030. I was never an under-achiever. I scored a 97 out of a possible 99 on the ASFAB, and 1 graduated in the top 5% of my class at A-School, studying to be an avionics technician. Things looked great for my future.

While assigned to VS-41 I self-referred to the command DAPA for alcohol and drug use. The drug use was brought on by anxiety and depression from being separated from my wife, and a sense of confusion about my orders. I had been assigned to VS-41 for a service school. However, when I arrived I was told that the orders were wrong-i was not supposed to be at that school. I would not be going to school, only to my final duty station. Over a month went by. I still did not receive any counseling or treatment for the drug use.

I was sent to my final duty station (USS Kitty Hawk CV-63) on December 12, 1991. The command DAPA and the department ignored the self-referral and chose to send me to school instead of treatment, or again, process me for administrative discharge. In fact, the supervisor of the shop that I was assigned to, Chief K_, advised me to keep silent and not to request any counseling, if I did this, I was told that the record of my self-referral would be expunged. In the months building up to departing six month cruise of the Western Pacific, my anxiety and depression continued, and again I turned to drugs to help me cope. I self-referred again in September of 1992. This time; however, I was told that I could only self-refer once and consequently, I would face judicial action. I was then put into a urinalysis program. The ship left for the West Pac, which included service in Somalia for Operation Enduring Freedom, and in the Persian Gulf for Operation Desert Shield in November of 1992. I was separated over a year later. Essentially, my problem was minimal enough not to warrant treatment or administrative discharge before the West Pac, but great enough to warrant a discharge under other than honorable conditions two years after my first self-referral and one year after my second attempt to get help. My service was honorable enough to serve over two years after admitting drug use and asking for treatment, and to serve during a humanitarian effort and a war, but not enough to receive an honorable discharge.

Had I been provided treatment while assigned to VS-41 or at CV-63, I very well may have completed my obligation and been given an Honorable discharge. Of course, we will never know now. However, if the policies that were in place at the time been adhered to, I would have been administratively discharged from VS-4 I two years earlier and the subsequent judicial action that led to my eventual discharge would have never occurred.

Since being discharged from the Navy under other than honorable conditions, I have accomplished many things without any use of drugs. I have not had any legal problems, nor have I used drugs. I sought counseling for my depression and learned new ways to cope with life’s obstacles. I have remained married for almost 15 years, supporting my wife while she earned her BA and MA degrees. I myself completed college, earning a BS (summa cum laude) in management and am nearing completion of 9 hours of study in a 36-hour MBA program. I have been in construction management for over 12 years, earning promotions regularly. I am very active in civic organizations such as the Fraternal Order of Eagles, The Masons and the Shrine, and the Boy Scouts of America. I have served as the vice president of my homeowners association and have held board and officer positions in several professional organizations. I have worked with my children to instill honor and character so that they will not fall victim to the same mistakes that I did. My son has just passed his board of review to advance to the rank of Life Scout.

Again, please consider my application for review of discharge. I ask that you find that I am deserving of an upgrade of my discharge based upon the aforementioned facts. Thank you for your consideration in this matter.

Sincerely,
[signed]
S_ R. F_(Applicant)”

Documentation

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

One page from Applicant’s service record dtd January 8, 1993
Honor Certificate from Recruit Training Command, Naval Training Center, Orlando, Florida, in recognition of meritorious achievement while undergoing Recruit Training, dtd January 18, 1991
Park University transcript (3 pages) dtd July 29, 2005
Applicant’s DD Form 214 (2)
Applicant’s Boy Scout of America card (2) February 28, 2006
Applicant’s Independence Lodge No. 76 card (2) December 31, 2005
Applicant’s ARARAT Shriners card (2) December 31, 2004
Applicant’s Fraternal Order of Eagles dues receipt, dtd July 31, 2006 (2)
Applicant’s letter to NDRB, dtd March 1, 2006 (3 pages)
Applicant’s concealed weapon or firearm license for the State of Florida
Newspaper article
Unofficial GMAT scores, test date June 4, 2005
Applicant’s Academic Record from Webster University (not an official transcript)
Certificate from Who’sWho Among Students in American Universities and Colleges from Park University, dtd 2005

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19900621 - 19901119	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19901120		Date of Discharge:  19931209

Length of Service (years, months, days):

	Active:    03  00  20  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:    1 day
	Confinement:		  24 days

Age at Entry:  20

Years Contracted:  4

Education Level:  13				AFQT:  95

Highest Rate:  ATAN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.1 (3)			Behavior:  3.1 (3)	OTA:  3.27

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal, Sea Service Deployment Ribbon, Southwest Asia Service Medal, Armed Forces Expeditionary Medal, Joint Meritorious Unit Award, Meritorious Unit Commendation

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events: 

900621:	Pre-service waiver for non-minor misdemeanor granted.

9110XX:	Applicant self referred while attached to VS-41 for XTALMETH and alcohol.  [Extracted from Command DAPA memorandum dated 931015.]

911125:	Applicant screened by CAAC.  [Extracted from Command DAPA memorandum dated 931015.]

920901:	Applicant self referred for THC.  Applicant directed to submit a urinalysis. (can only self refer one time).  [Extracted from Command DAPA memorandum dated 931015.]

920924:	Applicant’s urinalysis is negative.  [Extracted from Command DAPA memorandum dated 931015.]

921002:	Medical evaluation by Medical Department USS KITTY HAWK CV-63) by R. H. O_, CAPT, MC, USN
	Member (Applicant) interviewed and referred to CAAC for medical evaluation.
	Pattern of use past and present:  Methamphetamine used frequently in Oct 91 none since.  THC (marijuana) used frequently.
	Assessment: Member is psychologically dependent on drugs.
	Plan/Recommendation: Administrative separation.

921020:	Applicant’s medical evaluation completed.  Applicant found psychologically dependent on drugs.  [Extracted from Command DAPA memorandum dated 931015.]

921026:	Applicant placed on consent urinalysis program.  [Extracted from Command DAPA memorandum dated 931015.]

930103:	Medical evaluation by R. H. O_, CAPT, MC, USN.
	S: 22 year old ATAN presents today for psych evaluation.  Has expressed thoughts in writing regarding feelings towards Navy and minorities which prompted Dr. O to request this eval.
	A: No evidence of psychiatric disorder.
	P: Accountable for actions.

930112:	Medical evaluation by R. H. O_, CAPT, MC, USN.
	Review of records accomplish and case reviewed with BTC (SW) M_, Command DAPA.  Based on satisfactory work performance and 5 successive urinalysis, and no evidence drug usage, member (Applicant) no longer _____ diagnostic criteria for “Psychiatric Substance Dependence”.  Therefore patient is not drug dependent and physiologically or psychologically at this time.

9308XX:	Applicant self referred again (can only self refer once).  Applicant turned over to legal department.  Applicant’s urinalysis negative.  [Extracted from Command DAPA memorandum dated 931015.]

930904:	Applicant to unauthorized absence at 0424 on 930904.  [Extracted from Summary Court-Marital dated 931006.]

930905:	Applicant from unauthorized absence at 0730 on 930905 (1 day).  [Extracted from Summary Court-Marital dated 931006.].

931005:	Drug and Alcohol Abuse Report:

931006:	Summary Court-Martial.
	Charge I: violation of the UCMJ, Article 86:
	Specification: UA from unit 0424, 93Sep04 until 0730, 93Sep05.
	Charge II: violation of the UCMJ, Article 112a:
	Specification: Wrongfully use marijuana during the period of 93Jun26 through 93Jul26.
	Sentence: Forfeiture of $543.20, confinement for 30 days, reduced to E-1.
	CA action 931011:  Sentence approved and ordered executed.
	
931006:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as other than honorable by reason of misconduct due to drug use as evidenced by your enlisted service record.

931006:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.

931007:	Applicant to confinement.  Form P601-7R shows confinement date as 931006.  Standard Form 601, NAVMED 1406 reflects 931007-931208.  Standard Form 600 reflects 931007.

931015:	Drug and Alcohol Abuse Report: Marijuana abuse, 1 to 3 times per month, ashore off duty, self referral/disclosure 930907.  CAAC recommended Level III treatment.  Physician found Applicant dependent and recommended separation via VA hospital.  Commanding Officer recommended separation via VA hospital.  Comments:  Member (Applicant) is a good performer with a history of drug related incidents and no NJP’s.  Member has no potential for further service member self referred in October 1991 while at VS-41 with no action taken.  And then again on 1 September 1992 with a negative urinalysis so member was directed to stay onboard and deploy.  Member tried to self refer again on 7 September 1993 with a negative urinalysis.  Member taken to a summary court martial and convicted.  CAAC USS KITTY HAWK (CV 63).  Member was referred as the result of self referral for drug abuse with a negative urinalysis on 7 September 1993.

931015:	Command DAPA recommended to Legal Officer that Applicant be administratively separated due to admitting to drug abuse with a negative urinalysis.

931030*:	Applicant from confinement (24 days).  *Date taken from on DD Form 214, Block 29.  Standard Form 601, NAVMED 1406 reflects 931007-931208.

Undated:	Commanding Officer, USS KITTY HAWK (CV 63), recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by his enlisted service record.  Commanding Officer’s comments:  “ATAR F_(Applicant)’s use of marijuana is detrimental to good order and discipline.  He possesses no potential for continued service.  Accordingly, it is strongly recommended that ATAR F_(Applicant) be administratively discharge from the naval service, and that such discharge from the naval service, and that such discharge be under other than honorable conditions.”

931201:	Applicant found medically qualified for release from active duty in the U.S. Navy.

931203:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19931209 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 Applicant states “My discharge was inequitable because my first self-referral for drug and alcohol treatment went unanswered and I was sent to my permanent duty station”.  The Applicant self referred for drug and alcohol treatment during October 1991.  On 19911125, the Applicant was screened by the Counseling and Assistance Center (CAAC). The Board found no indication in the record that the Applicant was inequitably or improperly denied treatment for his drug use.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

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.  After a review of the documents it was discovered that the Applicant self referred himself on three separate occasions claiming that he used drugs.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  For the edification of the Applicant, self-admission to drug use is considered as “wrongful use of a controlled substance” punishable under the UCMJ, Article 112a.  The NDRB found that the Applicant’s service was equitably characterized.  Relief denied.

The Applicant states “I was an outstanding sailor, being selected as the honor recruit for Company C030 at NTC Orlando, and scoring in the top 5% of each of my service schools”.  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 one Summary Court-Martial for violations of UCMJ Article(s) 86 (unauthorized absence) and 112a (wrongful use of a controlled substance).  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 states “I also lost my GI Bill benefits”.  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.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  

The Applicant states “Since leaving the Navy, I have strived to be a productive member of society.  I started a career in construction management and have worked for several firms and received numerous promotions”.  The following is provided for the edification of the Applicant.  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 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.  Navy Military Personnel Manual, (NAVPERS 15560C), Change 5/93, effective 
05 Mar 93 until 21 Jul 94, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO 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, possession, etc. 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.

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