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NAVY | DRB | 2000_Navy | ND00-00026
Original file (ND00-00026.rtf) Auto-classification: Denied


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

ex-ATAR, USN
Docket No. ND00-00026

Applicant’s Request
The application for discharge review, received 991004, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a documentary record discharge review. The applicant listed the Paralyzed Veterans of America as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000720. 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/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

The NDRB did note an administrative error on the original DD Form 214. Block 26, Separation Code should read: “HKA” vice “HKK”. The original DD Form 214 should be corrected or reissued as appropriate.



PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. Dept. of the Navy contributed to veterans addictive behavior towards pain controlling drugs, resulting in manifestions of longstanding disorders of character, by over prescribing pain controlling drugs. (see document #2).

2. Veterans DD Form indicates no lost time during his enlistment

3. Veteran clearly should have been medically discharged or at the very least been given a General Discharge under Honorable Conditions.


 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214 (2 copies)
Letter from Paralyzed Veterans of America dated September 28, 1999
Thirty-eight pages from applicant's medical record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     960710 - 981211  COG

 Period of Service Under Review :
Date of Enlistment: 961230               Date of Discharge: 981211

 Length of Service (years, months, days):

         Active: 01 11 12
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4

 Education Level: 12                        AFQT: 77

 Highest Rate: ATAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF                           Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

 Chronological Listing of Significant Service Events :

980127:  NJP for violation of UCMJ, Article 111: Physically control a vehicle, to wit: a motorcycle, while impaired by 0.20 grams of alcohol per 210 liters of breath as shown by chemical analysis on 5Dec97.
         Award: Forfeiture of $519.50 per month for 1 month, extra duty for 30 days, reduction to ATAA. No indication of appeal in the record.
980429:  NJP for violation of UCMJ, Article 86: Absence without leave, violation of UCMJ, Article 112: Drunk on duty on 16Apr98.
         Award: Forfeiture of $463 per month for 2 months, restriction and extra duty for 45 days, reduction to ATAR. No indication of appeal in the record.
980620:  Applicant arrested for driving under the influence by California Highway Patrol. Case not yet adjudicated. [Extracted from CO's letter dated 23Sep98.]
980918:  NJP for violation of UCMJ, Article 92: Failure to obey order or regulation on 20Aug98, to wit: wearing civilian clothing, violation of UCMJ, Article 112A (4 specs): (1) Wrongfully possess some "Soma" on 19Aug98, (2) Wrongfully use "Soma" on 19Aug98, (3) Wrongfully introduce some "Soma" onto NAS, North Island, San Diego, CA on 19Aug98, (4) Wrongfully import some "Soma" from Mexico into the customs territory of the United States on 19Aug98.
         Award: Forfeiture of $463 per month for 1 month, restriction for 60 days. No indication of appeal in the record.
980127:  Retention Warning: Advised of deficiency (Drunken operation of a vehicle.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

980918:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense, drug abuse, pattern of misconduct and alcohol abuse rehabilitation failure.
980918:          Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to waive all rights.
980923:  Substance Abuse Rehabilitation Department Screening: Diagnostic Impression: 1. ETOH dependence (early partial remission), 2. Prescription narcotic abuse.
980923:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse, commission of a serious offense, a pattern of misconduct, and alcohol abuse rehabilitation failure. Commanding officer's comments (verbatim): Airman Recruit (applicant's) continual disciplinary problems since reporting on board has been a detriment to the good order and discipline of this command. He reported on board in December 1997 with an on base DUI that was pending and not finalized by his previous command. After the DUI incident, Airman Recruit (applicant) was evaluated by CAAC and found to be alcohol dependent. He attended Level III treatment from 17 February 1998 through 20 March 1998. After completing Level III, he missed a watch and when located was found to be drunk while in a duty status. On 20 June 1998 he was arrested by the civilian authorities for driving under the influence. On 19 August 1998 he was caught in possession of a schedule V controlled substance for which he did not have a prescription. Airman Recruit (applicant) clearly lacks any potential for future naval service. I recommend he be discharged from active duty with an Other Than Honorable characterization of service.

981007:  Commander, Naval Air Force, U.S. Pacific Fleet directed the applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 981211 under other than honorable conditions for misconduct due to a pattern of misconduct (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: “Dept. of the Navy contributed to veterans addictive behavior towards pain controlling drugs, resulting in manifestations of longstanding disorders of character, by over prescribing pain controlling drugs. (see document #2).” The applicant was treated at Level III and continued to abuse alcohol and illicit drugs. Further, competent medical authority stated “…at the time of the alleged offense(s) the accused ability to adhere to the right was not impaired. It is further the opinion of the undersigned that the accused does posses sufficient mental capacity to understand the nature of the proceedings against him and therefore is able to conduct and/or cooperate in his own defense.” The NDRB found the applicant to be fully responsible for his misconduct and the discharge as issued was proper and equitable.

The applicant’s second issue states: “Veterans DD Form indicates no lost time during his enlistment.” The NDRB found this issue without merit. The issue seems to imply that the applicant’s documented misconduct should be mitigated, or offset, by the fact that his misconduct did not include time lost or substantial unauthorized absences. The applicant’s misconduct was in fact significant and substantial to warrant a discharge of other than honorable. The applicant’s documented misconduct included Violations of the UCMJ for Article 111 (drunken driving), Article 86 (absence without leave), Article 112 (drunk on duty), Article 92 (failure to obey a lawful order), Article 112a (wrongful possession of a controlled substance) over the course of his one year, eleven months and twelve days of active service. Relief is denied.

The applicant’s third issue states: “Veteran clearly should have been medically discharged or at the very least been given a General Discharge under Honorable Conditions.” Upon review of the record, the NDRB found the applicant was found to be competent to be held accountable for his actions. The applicant’s misconduct included four serious offenses that the applicant could have received a punitive discharge at court martial. The NDRB found the other than honorable characterization was indeed equitable. Relief denied.


Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective
12 Dec 1997 until Present, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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 view DoD Directive 1332.28 and other Decisional Documents by going online at “ afls14.jag.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:

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


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