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NAVY | DRB | 1999_Navy | ND99-01051
Original file (ND99-01051.rtf) Auto-classification: Denied


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

ex-HN, USNR
Docket No. ND99-01051

Applicant’s Request
The application for discharge review, received 990802, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a documentary record discharge review. The applicant listed the American Legion as her representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000420. 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)/DRUG REHABILITATION FAILURE, authority: MILPERSMAN, Article 1910-150 (formerly 3630500).

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. My discharge was inequitable because I did not fail drug rehabilitation as stated in question 28 of my DD Form 214.

2. It would be inconceivable to deny me of an honorable discharge considering that I "self-referred" to DAPA due to a Demerol addiction following my kidney surgery.

3. I was told while at SARD, Substance Abuse Rehabilitation Department, that any thing I said there would be kept confidential, and would not be used to classify my discharge.

4. I was told by SARD and PSD, that upon my discharge I would still be able to receive by GI bill and Navy College fund. It would be inconceivable to deny a 23 yr old mother of 2, the opportunity to attend college.

5. I have already enrolled in the University of Akron and Attended the Spring semester of 1999 as a full time student as I awaited my GI bill benefits. Unfortunately, I could not continue school because I received the VA Form 20-8993 stating my claim was denied because my "discharge does not establish eligibility to Chapter 30 benefits.

6. My service time before this incident was excellent. Received "Good conduct".

7. (EQUITY ISSUE) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of her application.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214
Evaluation Reports (6 evaluations)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: None

 Period of Service Under Review :
Date of Enlistment: 940908               Date of Discharge: 981109

 Length of Service (years, months, days):

         Active: 03 09 29
         Inactive: 00 04 03

 Age at Entry: 18                          Years Contracted: 8

Education Level: 12                        AFQT: 77

 Highest Rate: HN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.5 (6)     Behavior: 2.5 (6)                 OTA: 3.14

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)/DRUG REHABILITATION FAILURE, authority: MILPERSMAN, Article 1910-150 (formerly 3630500).
Chronological Listing of Significant Service Events :

961113:  Psychiatry Evaluation: 20 year old active duty corpsman referred by SSC due to pt concern about depression due to read symptoms in a brochure in office of marriage counselor relayed at routine appointment.
 Assessment: Axis I: 1 - Major Depressive Disorder, single episode, with postpartum onset (296.22), 2 - Partner relational problem (V61.1).
Axis II: Deferred
Axis III: 3 months postpartum of NSVD of healthy female.
Axis IV: Childcare, AD
Axis V: GAF = 61-70
970731:  NAVMEDCEN, San Diego, CA: Referred back by Dr. L_ in surgery clinic for depression. Pt reports increase stresses lately due to separation from husband, single parenting, financial problem & work stress.
         IMPRESSION: Adjustment Disorder
         PLAN: No medicine. Return per worsening

980414:  NAVMEDCEN, San Diego, CA: This pt is a 22 year old active-duty female corpsman with complaints of excessive daytime sleepiness. She reports that she became excessively sleepy during the daytime while I Corps School approximately three years ago. ............She has recently been having difficulty staying awake while doing clerical work I the Surgery Clinic. Additionally, she has had two episodes where she fell asleep at the wheel, but there was no accident or injury on either occasion. .........PAST MEDICAL HISTORY: She had an episode of major depression, Nov 96. She was prescribed Prozac but took it only one week. She also had some insomnia with her disorder, and was given Ambien which she took for one month. MEDICATIONS: None currently, although she took Fen-phen in 1996 and 1997.
         IMPRESSION:
         AXIS A: 1. Excessive daytime sleepiness.
                  2. Rule out insufficient sleep
                  3. Rule out sleep disorder, breathing.
                  4. Rule out Narcolepsy.
                   AXIS B: Overnight Polysomnogram with multiple sleep latency test.
                  AXIS C: 1. Obesity
                           2. History of Depression
                           3. Tobacco use

 980921:  Pt self-referred to her DAPA due to her concern regarding her narcotic use - Bemoral & Vicodem since July 98. Daily use of one or other. 2-8 tablets a day. Pt given prescriptions due to a kidney obstruction. Pt states she continued to feel some pain and continued to get prescriptions filled. However, states she sues it despite no pain & believes she will tell her M.D.s that she is in pain (when she's not) to get prescriptions. Also suspects the pain increased prior to her M.D. visits and it may have been psychologically based. Last use of Vicodem was last night (2 tablets). After 3 hrs of last use of pills, pt experience headaches, sweating and insomnia, increased anxiety and fear, increased heartrate. Pt believe her drinking has increased. Over weekend pt drank 3-4 drinks Friday and 3-4 drinks Saturday (rum & coke, 16oz glasses "pretty strong"). Pt states she that she drank on pay day "to get drunk" which was at least 4 drinks. Pt states that one she starts to drink she cannot stop until it "runs out" and also she sometimes tells herself to stop at 3 but cannot. Family history of drugs and alcohol. Currently using Ambien for sleep (as needed).
         980928: Assessment: AXIS I: Alcohol Dependence, Drug Dependence - Narcotics; Withdrawal risk is deemed LOW, pt does not need hospitalization.
         Plan: SARD Treatment for alcohol/drug dependence.

980921:  SARD Secondary Outpatient Treatment Record: Diagnostic Impression - 1- alcohol dependence, 2 - sedative dependence. Recommended Placement - Complete full day at Point Loma since Pt does not believe she can not use as an outpatient.

981102:  Applicant notified of intended recommendation for discharge with a general (under honorable conditions) by reason of misconduct - drug abuse as evidenced by voluntarily disclosing evidence of prior personal drug abuse during course of treatment/rehabilitation.
981103:  Applicant advised of her 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.

981103:  Commander, Naval Medical Center, San Diego, directed the applicant's discharge with a general (under honorable conditions) by reason of drug abuse rehabilitation failure.

PART III – RATIONALE FOR DECISION AND PERTINENT
REGULATION/LAW

Discussion

The applicant was discharged on 981109 with a general (under honorable conditions) by reason of misconduct due to drug abuse - rehabilitation failure (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 issues 1-4, the Board found nothing in the records, nor did the applicant provide anything to indicate or to show that there exists an error of fact, law, procedure, or discretion associated with his discharge at the time of its issuance, and that her rights were prejudiced thereby. Furthermore, there has been no change in policy by the Navy, or higher authority, made expressly retroactive to the type of discharge received by the applicant. Relief denied.

In response to issue 5, the Board has no obligation to change the applicant's discharge in order to allow her to go back to school. Relief will not be granted on this issue.

In response to issue 6, the applicant implies that a permissive doctrine exists whereby one in the military is allowed a single “incident". The Board believes that the applicant is confusing this with the civilian world wherein some offenses are treated with leniency because they are a first time incident on an otherwise clear record. No such leniency exists in the military. The applicant is responsible for her actions and must accept the consequences of her misdeeds. The Board will not grant relief on the basis of this issue.

The applicant’s representative submitted the following as issue 7: (EQUITY ISSUE) This former member further requests that the Board include provisions of SECNAVINST 5420.174C., enclosure (1), Chapter 9, as it pertains to post-service conduct, in assessing the merits of his application. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, is considered. The applicant provided no documentation of her post-service. The applicant's efforts need to be more encompassing than those provided. The applicant should have produced evidence of continuing educational pursuits, a verifiable employment record, documentation of community service, certification of non-involvement with civil authorities and proof of her not using drugs in order for consideration for clemency based on post-service conduct. At this time the applicant has not provided sufficient documentation of good character and conduct. Therefore no relief will be granted. She is highly encouraged to continue with her pursuits and is reminded that she is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Relief denied.

Pertinent Regulation/Law (at time of discharge)

A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 21, effective 01 Sep 98 until Present, Article 1910-150 (formerly 3630500), Separation by Reason of Drug Abuse Rehabilitation Failure.

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 Room 309
                  Washington, D.C. 20374-5023     


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