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NAVY | DRB | 1999_Navy | ND99-00772
Original file (ND99-00772.rtf) Auto-classification: Denied


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

ex-ETSN, USN
Docket No. ND99-00772

Applicant’s Request
The application for discharge review, received 990514, requested that the characterization of service on the discharge be changed to general/under honorable conditions and the reason for the discharge be changed to administrative. The applicant requested 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 000317. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service. The Board’s vote was unanimous that the character of the discharge shall not change. The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630605.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. The General Discharge was awarded unjustly because if I had spoken to the ship's DAPA first, I would not have been discharged.

 On July 17, 1996, after many days and hours of thinking, and finally at 2:30 a.m. that morning, I came to the realization that I needed more help than I could offer myself concerning my problem with smoking marijuana. I decided that instead of going behind the Navy's back and seeking help, I would ask the DAPA for this help, and I also knew that if I didn't go to the ship right at that instant, that I would probably never go.
When I entered the Navy on January 18, 1993, I was told that the DAPA and the Navy would always be there for me if I needed them. When I checked on board the USS Minneapolis St. Paul (SSN 708) in January 1995, I was told the same thing again by the ships DA-PA: ICC(SS) Minns. However, when I decided to ask for this help I had been offered, he wasn't on duty, so I went to see the Duty Chief. Since I had spoken to someone besides the DAPA that night about my problem, I was written up that morning and the next day I was standing in front of my C.O.: Commander A.0. L_ at Captain's Mast.
When I was finally able to speak to the DAPA the next day for an interview, he said if I had waited and spoke to him only about this, the situation would have been resolved by putting me into the Navy's rehabilitation program for drug users, and not by charging me as a criminal and eventually throwing me out.
2. The General Discharge was awarded unjustly because the submarine Squadron 6 medical officer documented in my record that I qualified for rehabilitation treatment; but upon numerous requests, I received none.

 On July 18, 1996, among many other punishments handed out that day, I was put on 45 days restriction onboard the submarine tender USS Emory S. Land. Approximately a week and a half later, I was allowed to be evaluated by a doctor at Submarine Squadron 6. During this very brief 10 minute interview, he asked my questions from a standard Navy check-off list used to diagnose drug and alcohol problems in people. (This form is in either my Medical or Service record, and less than 10 questions)
This form was used to determine if:
 a) I was an addict, and treatment was needed immediately,

b) I had a problem, and treatment was amendable, or

c) There was no apparent problem.

 The doctor chose (b), that yes I did have a problem, that treatment was amendable, and that I could receive rehabilitation treatment. From that day until I was finally kicked out of the Navy 5 months later, I as well as my ship's DAPA, and my appointed JAG Officer tried to find out when I would receive this treatment which I had asked for. This treatment however was never talked about again or given to me. I thank God, my unborn daughter at that time, and my girlfriend, for helping me get through the hell I went through.

3. The General Discharge was awarded unjustly because it is based on one isolated incident after 42 months of honorable service.

 Although my actions were wrong and unhonorable at the time, I believe that it did not warrant the punishments handed to me. For 42 months prior to July 1996, I lead a very honorable Naval career. While in sub-school, I was on the Silver Dolphins Rifle Team. We marched in parades throughout the New England states, and during the holiday season, we collected gifts at the local mall for charity. I passed every test given in Electronic Technician 'A' and 'C' schools, and graduated AN-BRD-7 school as an E-4, which is usually not offered to E-5 or below, and especially people who have never been to a submarine prior. While on the boat, I helped build a playground at a nearby park with fellow shipmates.
 In January 1996, I received my good conduct medal for 3 years of honorable service. My evaluations were always good, and had this incident not occurred, my next evaluation was a 4.13 with a recommendation for early advancement to E-5. This excellent eval. was quickly changed to a 1.8. I can honestly say that my one unhonorable act is heavily outweighed by many honorable ones.

4. The General Discharge was awarded unjustly because although I was asking for help, I opened myself up to prosecution and was made to be an example of by my commanding officer.

 During the ship's 2-week post-deployment stand down, 3 shipmates were arrested for D.U.I.'s and the Command was notified. Not one of these individuals were disciplined in any way, shape, or form. I believe that I was sent to Captain's Mast because:

 a) I did not speak to the right people about my problem (DAPA)

b) To be made an example of, given the recent incident's with other shipmates
Since I did not report myself to the ship's DAPA, it enabled my C.O. to issue every punishment at his disposal. His punishment's included:

1) 45 days restriction
2) Reduction in rate to E-3
3) 1/2months pay for 2 months
4) Loss of Top Secret Clearance
5) Administrative Discharge
6) Disqualified from Submarines which prohibited me from wearing the dolphins on my chest which I earned.

 Being disqualified from submarines hurt the most. I loved the responsibility that came with the job, I had friends, and I got along with all of my shipmates, Chiefs, and Officer's. When I was thrown off of the ship, I hurt my duty section, my at-sea watch, the trust and respect which I had earned, and the (SS) insignia after my rate. I honestly believe that I was given these harsh punishments to be made an example of.
5. The General Discharge was awarded unjustly because it disqualified me from receiving the Montgomery G.I. Bill benefits when Honorable time and service had been served.

 When I entered the United States Navy in January 1993, I chose to participate the Montgomery G.I. Bill program. For one year, I contributed a total of $1,200 in order to receive these benefits. Although you must have an Honorable Discharge to receive the benefits, I believe that I did have honorable service for 3 1/2 of my 4 years in the Navy. A person needs only 2 years of Honorable service to qualify for benefit's, and I have a year and a half more than that. The only way to receive these benefits is for my discharge to be changed to an Honorable one. An education is one of my many goals so I can raise my daughter in a healthy atmosphere, and teach her the values and opportunities that come with going to school.
6. Closing Statements.

 In closing, I would like to ad this. My actions while in the last year of the United States Navy were absolutely improper. I let my shipmates who had counted on me down, my friends down, my family, and my Country. When I found out that I was going to be a father, I realized it was time to take responsibility for myself and get the help I needed to become a good parent. Upon that realization that I was going to need help getting through this, I turned to the people who had taken care of me for 3 1/2 years.
Instead of getting the help I asked for, their backs were turned on me and I was called a liar. I was thrown off my ship, and out of the Navy disgracefully and unhonorably. The same people who said they had an 'Open Door' policy slammed that door in my face. The only reason was because I had asked the wrong person for this help, and fell from the help category to the hurt category.
As I have stated, my actions were wrong, but I believe what Commander L_ and the United States Navy did was also wrong. My actions were not honorable, but asking for help and admitting a problem is in my opinion; very honorable. What I am asking is that my discharge be raised from a General Discharge to a Honorable for every reason which I have stated in the last six pages. Thank you.


Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     921222 - 930118  COG

 Period of Service Under Review :
Date of Enlistment: 930119               Date of Discharge: 961227

 Length of Service (years, months, days):

         Active: 03 11 00
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

Education Level: 12                        AFQT: 75

 Highest Rate: ET3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.8 (2)     Behavior: 3.8 (3)                 OTA: 3.8 (4.0 Evals)
3.0 (1)                  1.0 (1)                  2.6 (5.0 Evals)

 Military Decorations: None

 Unit/Campaign/Service Awards: GCM, NDSM

Days of Unauthorized Absence: None






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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630605.

 Chronological Listing of Significant Service Events :

960719:  DARR: Self referral, positive for designer drugs, recommend administrative separation.
960719:  NJP for violation of UCMJ, Article 112A (8 Specs):
Spec 1 - on or about 15 Jun 96 to 17 Jul 96, wrongfully use "ecstasy" a controlled substance;
Spec 2 - on or about 15 Jun 96 to 17 Jul 96, wrongfully use Lysergic Acid Diethylamide a controlled substance;
Spec 3 - on or about 15 Jun 96 to 17 Jul 96, wrongfully use marijuana, a controlled substance;
Spec 4- on or about 15 Jun 96 to 17 Jul 96, wrongfully possess "ecstasy", a controlled substance;
Spec 5 - on or about 15 Jun 96 to 17 Jul 96, wrongfully possess Lysergic Acid Diethylamide a controlled substance;
Spec 6 - on or about 15 Jun 96 to 17 Jul 96, wrongfully possess marijuana, a controlled substance;
Spec 7 - on or about 15 Jun 96 to 17 Jul 96, wrongfully introduce "ecstasy" a controlled substance, onto a vessel, aircraft, vehicle, or installation used by the Armed Forces or under control of the Armed Forces, to wit: USS MINNEAPOLIS-SAINT PAUL (SSN 708);
Spec 8 - on or about 15 Jun 96 to 17 Jul 96, wrongfully import "ecstasy" a controlled substance, into the customs territory of the United States while on board a vessel used by the Armed Forces or under control of the Armed Forces, to wit: USS MINNEAPOLIS-SAINT PAUL (SSN 708).
         Award: Forfeiture of $509 per month for 2 months, restriction for 45 days, reduction to E-3. No indication of appeal in the record.
960719:  Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse and the commission of a serious offense and the characterization of service may be Other Than Honorable.
960729:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
961031:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed a serious offense and has committed drug abuse, that the misconduct warranted separation, and recommended discharge be general (under honorable conditions).

961202:  Commanding officer recommended discharge with a general (under honorable conditions) by reason of misconduct due to drug abuse and due to the commission of a serious offense.

961217:  COMSUBGRU TWO directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

970130:  COMSUBGRU TWO directed the applicant's discharge with a general (under honorable conditions) by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 961227 with a general (under honorable conditions) for misconduct due to commission of a serious offense (A). The Board presumed regularity in the conduct of governmental affairs (B). 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’s first issue states: “ The General Discharge was awarded unjustly because if I had spoken to the ship's DAPA first, I would not have been discharged.
On July 17, 1996, after many days and hours of thinking, and finally at 2:30 a.m. that morning, I came to the realization that I needed more help than I could offer myself concerning my problem with smoking marijuana. I decided that instead of going behind the Navy's back and seeking help, I would ask the DAPA for this help, and I also knew that if I didn't go to the ship right at that instant, that I would probably never go.
When I entered the Navy on January 18, 1993, I was told that the DAPA and the Navy would always be there for me if I needed them. When I checked on board the USS Minneapolis St. Paul (SSN 708) in January 1995, I was told the same thing again by the ships DA-PA: ICC(SS) Minns. However, when I decided to ask for this help I had been offered, he wasn't on duty, so I went to see the Duty Chief. Since I had spoken to someone besides the DAPA that night about my problem, I was written up that morning and the next day I was standing in front of my C.O.: Commander A.0. L_ at Captain's Mast.
When I was finally able to speak to the DAPA the next day for an interview, he said if I had waited and spoke to him only about this, the situation would have been resolved by putting me into the Navy's rehabilitation program for drug users, and not by charging me as a criminal and eventually throwing me out.”

The NDRB found this issue without merit. The applicant states that if he had spoken to the DAPA first, he would not have been discharged. The NDRB found the applicant was properly processed for drug use. The characterization, General (Under Honorable Conditions), was equitable as the applicant could have been awarded a punitive discharge at court martial. Relief not warranted.
2. The applicant’s second issue states: “The General Discharge was awarded unjustly because the submarine Squadron 6 medical officer documented in my record that I qualified for rehabilitation treatment; but upon numerous requests, I received none.
 On July 18, 1996, among many other punishments handed out that day, I was put on 45 days restriction onboard the submarine tender USS Emory S. Land. Approximately a week and a half later, I was allowed to be evaluated by a doctor at Submarine Squadron 6. During this very brief 10 minute interview, he asked my questions from a standard Navy check-off list used to diagnose drug and alcohol problems in people. (This form is in either my Medical or Service record, and less than 10 questions)
This form was used to determine if:
 a) I was an addict, and treatment was needed immediately,

b) I had a problem, and treatment was amendable, or

c) There was no apparent problem.

 The doctor chose (b), that yes I did have a problem, that treatment was amendable, and that I could receive rehabilitation treatment. From that day until I was finally kicked out of the Navy 5 months later, I as well as my ship's DAPA, and my appointed JAG Officer tried to find out when I would receive this treatment which I had asked for. This treatment however was never talked about again or given to me. I thank God, my unborn daughter at that time, and my girlfriend, for helping me get through the hell I went through.”

The NDRB found the applicant was properly evaluated by Submarine Squadron Six Medical Officer on 960808 and found to be a drug abuser and not dependant on drugs. There is no requirement for treatment if found non dependant. Relief not warranted.

3. The applicant’s third issue states: “The General Discharge was awarded unjustly because it is based on one isolated incident after 42 months of honorable service.

 Although my actions were wrong and unhonorable at the time, I believe that it did not warrant the punishments handed to me. For 42 months prior to July 1996, I lead a very honorable Naval career. While in sub-school, I was on the Silver Dolphins Rifle Team. We marched in parades throughout the New England states, and during the holiday season, we collected gifts at the local mall for charity. I passed every test given in Electronic Technician 'A' and 'C' schools, and graduated AN-BRD-7 school as an E-4, which is usually not offered to E-5 or below, and especially people who have never been to a submarine prior. While on the boat, I helped build a playground at a nearby park with fellow shipmates.
 In January 1996, I received my good conduct medal for 3 years of honorable service. My evaluations were always good, and had this incident not occurred, my next evaluation was a 4.13 with a recommendation for early advancement to E-5. This excellent eval. was quickly changed to a 1.8. I can honestly say that my one unhonorable act is heavily outweighed by many honorable ones.”

The NDRB found this issue without merit. The applicant was found in violation of UCMJ Article 112a, EIGHT Specifications, of wrongful use, possession, etc., of a controlled substance. This included wrongful use, possession etc. of ecstasy, LSD, and marijuana. The applicant’s service record was considered in the issue of the General Discharge. The NDRB found the applicants discharge equitable considering the offenses. Relief denied.

4. The applicant’s fourth issue states: “The General Discharge was awarded unjustly because although I was asking for help, I opened myself up to prosecution and was made to be an example of by my commanding officer.

 During the ship's 2-week post-deployment stand down, 3 shipmates were arrested for D.U.I.'s and the Command was notified. Not one of these individuals were disciplined in any way, shape, or form. I believe that I was sent to Captain's Mast because:

 a) I did not speak to the right people about my problem (DAPA)

b) To be made an example of, given the recent incident's with other shipmates
Since I did not report myself to the ship's DAPA, it enabled my C.O. to issue every punishment at his disposal. His punishment's included:

1) 45 days restriction
2) Reduction in rate to E-3
3) 1/2months pay for 2 months
4) Loss of Top Secret Clearance
5) Administrative Discharge
6) Disqualified from Submarines which prohibited me from wearing the dolphins on my chest which I earned.

 Being disqualified from submarines hurt the most. I loved the responsibility that came with the job, I had friends, and I got along with all of my shipmates, Chiefs, and Officer's. When I was thrown off of the ship, I hurt my duty section, my at-sea watch, the trust and respect which I had earned, and the (SS) insignia after my rate. I honestly believe that I was given these harsh punishments to be made an example of.”

The NDRB found the applicant’s admission to the “duty Chief” of his drug use did not exempt him from disciplinary action. The punishment awarded at NJP was not appealed and was proper and equitable considering the applicant’s misconduct. Relief not warranted.
5. The applicant’s fifth issue states: “The General Discharge was awarded unjustly because it disqualified me from receiving the Montgomery G.I. Bill benefits when Honorable time and service had been served.

 When I entered the United States Navy in January 1993, I chose to participate the Montgomery G.I. Bill program. For one year, I contributed a total of $1,200 in order to receive these benefits. Although you must have an Honorable Discharge to receive the benefits, I believe that I did have honorable service for 3 1/2 of my 4 years in the Navy. A person needs only 2 years of Honorable service to qualify for benefit's, and I have a year and a half more than that. The only way to receive these benefits is for my discharge to be changed to an Honorable one. An education is one of my many goals so I can raise my daughter in a healthy atmosphere, and teach her the values and opportunities that come with going to school.”

The NDRB found the applicant’s issue non- decisional and without merit. The applicant’s documented misconduct resulted in discharge prior to the expiration of his obligated service with characterization of General. Relief in order to secure GI Bill benefits is not warranted.
The applicant provided no post service considerations for the NDRB to consider.

Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 14, effective
03 Oct 96 until 971212, Article 3630605, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D. Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 obtain a copy of DoD Directive 1332.28 by writing to:
                  DA Military Review Boards Agency
                  Management Information and Support Directorate
                  Armed Forces Reading Room
                  Washington, D.C. 20310-1809

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:

                  Naval Council of Personnel Boards
                  Attn: Naval Discharge Review Board
                  Washington Navy Yard
                  720 Kennon Street SE Rm 309
                  Washington, DC 20374-5023       


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