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NAVY | DRB | 1999_Navy | ND99-00983
Original file (ND99-00983.rtf) Auto-classification: Denied


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

ex-ETSN, USN
Docket No. ND99-00983

Applicant’s Request
The application for discharge review, received 990713, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000411. 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: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630620.

The NDRB did note an administrative error on the original DD Form 214. Block 18, Remarks should contain: CONTINUOUS HONORABLE ACTIVE SERVICE FROM 910703 until 970217. The original DD Form 214 should be corrected or reissued as appropriate.






PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1. The disciplinary actions taken by the Navy were against behavior on my part that was due to suffering from a mental disorder. The disorder has been diagnosed as manic depressive by a psychiatrist during my treatment at Searly Hospital. I believe my discharge should be changed to honorable.


 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Letter from Staff Psychiatrist dated March 12, 1999
Copy of DD Form 214 (4 copies)
Copy of authorization for source of release
Copy of Travel Certificate Separation Without Orders dated July 25, 1997
Thirty pages from applicant's service records

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        910703 - 970217  HON
         Inactive: USNR (DEP)              901120 - 910702  COG

 Period of Service Under Review :
Date of Enlistment: 970218               Date of Discharge: 970801

 Length of Service (years, months, days):

         Active: 00 05 14
         Inactive: None

 Age at Entry: 24                          Years Contracted: 6

 Education Level: 12                        AFQT: 66

 Highest Rate: ET3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.00 (1)    Behavior: 1.50 (1)                OTA: 2.43

 Military Decorations: None

 Unit/Campaign/Service Awards: ESWI, NDSM, BER

 Days of Unauthorized Absence: None

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

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

 Chronological Listing of Significant Service Events :

970529:  NJP for violation of UCMJ, Article 92: Failure to obey order or regulation, violation of UCMJ, Article 109: Destruction of property other than military, violation of UCMJ, Article 128: Assault, violation of UCMJ, Article 134: Disorderly conduct.
Award: Forfeiture of $600 per month for 1 month, oral admonition, reduction to ETSN. Reduction suspended for 6 months. No indication of appeal in the record.
970529:  Retention Warning: Advised of deficiency (Failure to obey order or regulation, destruction of property other than military property of the U.S., assault and disorderly conduct.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

970607:  Vacate suspended reduction to ETSN.

 970607:  NJP for violation of UCMJ, Article 91: Insubordinate conduct toward officer or petty officer, violation of UCMJ, Article 92: Failure to obey order or regulation.
         Award: Forfeiture of $500 per month for 1 months, oral admonition. No indication of appeal in the record.
970607:  Retention Warning: Advised of deficiency (Insubordinate conduct toward a Chief Petty Officer and failure to obey order or regulation.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

970708:  NAVDRUGLAB, Jacksonville, FL reports urine sample received 970627 tested positive for cocaine.
970709:  NJP for violation of UCMJ, Article 112A: Wrongful use, possession of controlled substances on 26Jun97, to wit: cocaine.
Award: Forfeiture of $670.80 per month for 2 months, reduction to ETSN. No indication of appeal in the record.

 970709:  Drug and Alcohol Abuse Report: Cocaine abuse, random urinalysis June 26, 1997, abuse denied. CAAC recommends attend impact then separate from service. Clinical psychologist found applicant not dependent. Commanding officer recommended separate not via VA hospital.
970710:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to commission of a serious offense as evidenced by you receiving a positive report from a Random Urinalysis test held on or about 17 June 1997 onboard USS NEBRASKA (SSBN 739) (GOLD) as cited as NAVDRUGLAB JACKSONVILLE FL 080701Z JUL 97.
970710:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
970710:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use) and commission of a serious offense.

970717:  Medical evaluation for drug abuse found the applicant not to be drug dependent so drug abuse treatment is not indicated.

PART III – RATIONALE FOR DECISION AND PERTINENT
REGULATION/LAW

Discussion

The applicant was discharged on 970801 under other than honorable conditions for misconduct due to drug abuse (use) (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).

In response to applicant’s issue 1, a mental disorder on active duty or during post-service, and whether proper or improper, is not an issue upon which this Board can grant relief. When reviewing a discharge, the Board does consider the extent to which a mental disorder, diagnosed or undiagnosed while on active duty, might effect an applicant's performance and ability to conform to the military's standards of conduct and discipline. The Board does not consider the circumstances surrounding the applicant's diagnosis or any medical treatment given to the applicant to be of sufficient nature to exculpate the applicant from his misconduct of record. In fact, the Board has seen no connection between the applicant's mental disorder and his drug usage. Relief is not warranted.

There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in the civilian life subsequent to leaving the Service. However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D). Those factors include, but are not limited to, the following: evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct. At this time, the applicant has not provided any documentation of good character and conduct. Therefore no relief will be granted. The applicant is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15-years from the date of discharge.

Pertinent Regulation/Law (at time of discharge)

 A . Navy Military Personnel Manual, (NAVPERS 15560C), Change 14, effective
03 Oct 96 until 11 Dec 97, Article 3630620 SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT DRUG ABUSE
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, D.C. 20374-5023     


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