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NAVY | DRB | 2001_Navy | ND01-00315
Original file (ND01-00315.rtf) Auto-classification: Denied


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

ex-HA, USN
Docket No. ND01-00315

Applicant’s Request
The application for discharge review, received 010122, 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 did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010629. 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 – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. I D----- M-----l, SSN respectfully request that my Other Than Honorable discharge be upgraded to General Under Honorable Conditions. When I was released from the military 31 August 1990 on administrative leave, I was told that my discharge would be General Under Honorable conditions. This was the Commanding Officer's recommendation from my Captains mast. I was brought up on charges of self-medicating, after popping positive on a unit urinalysis. Before I took the urinalysi3, I informed the corpsman that I had taken 4 tablets of Tylenol 3 with codeine 48 hours prior, because I had strained the Muscle in my shoulder and did not have any other medication to take for pain. The Tylenol 3 was mine; it was left over from a previous prescription. I am not advocating or trying to make excuse for self-medicating, but it seemed like the right thing to do at the time I was hurting. I by no means would have taken any prescription drug for any reason other than its prescribed use. When the results of the urinalysis came back, sure enough I had been found positive for codeine. When whoever was in charge of the urinalysis checked my medical record for a recent prescription of Tylenol 3, they did not find one. I told the corpsman that I had four tablets left over from a previous prescription, but because I was unable to give him the bottle, I was brought up on charges of self-medicating. Before going to my Captain'3 mast, I was given the option for a court-martial. It was explained to me that if I chose to go before a court-martial that I could be put out of the Navy under Other Than Honorable conditions. This was something I did not want, especially when I was scheduled to re-enlist in less than a year. When I went to the Captain's mast I was rewarded a reduction in rank. At the time I was a frock E-4 and with the reduction of rank I was demoted to an E-2. Because I would be an E-2 with six years of service, I would not be able to re-enlist. Therefore, the Commanding Officer offered me the option of an administrative discharge. He said that I would be discharged with a General Under Honorable condition discharge. I chose the administrative discharge. My unit was scheduled to pack up and go to Saudi Arabia and I did not want to go to Saudi Arabia for possibly a year, as an E-2 having to extend my time in service because I would be there longer than time left in service, just to come back to United States and be discharged from the Navy. I sent on administrative leave from the military on 31 August 1990. I did not hear anything from the military again until I received my DD-214 discharge in the mail. When I opened it up it said that I had received an Other Than Honorable discharge because of drug abuse. I was furious, because I did not than, nor have I ever abused drugs. I did admit to self-medicating (taking 4 tablets of Tylenol 3 over a 48-hour period for muscle pain, without a prescription by a medical doctor for that incident). I by no means would consider this drug abuse.
I had no history of drug abuse; I had taken random urinalysis for over five years in the military, and never came up positive for any drugs or alcohol. I was sent for a medical evaluation to determine whether or not I had any drug or alcohol abuse/dependency, and the medical officer stated that I had no indications of any kind of substance abuse and no need for further evaluation. I called my old command duty station; ask them to speak with someone who could explain to me why my discharge was Other Than Honorable instead of General Under Honorable conditions. I was told that because I was no longer active duty and because I had waived my right to a court-martial, the only thing that I could do was to request an upgrade for my discharge. When I asked about what I needed to do in order to request is upgrade, I was told that I needed to "stay clean for a couple of years and do something good in my community, then have someone with some influential power write me a letter of recommendation and send it to the upgrade committee". I was not happy with the answers that I got, but everywhere else I tried to call, I kept getting the same information "that there was nobody available to help me, everybody had gone to Saudi Arabia".
That was 10 years ago. I decided to be an over-the road truck driver to support myself and didn't seem to have any problems getting a job, even though I had an Other Than Honorable discharge from the military. I drove a semi truck for six years. I drove for J____ M____ trucking company in Kansas, Illinois for approximately three years and I also drove for MS carriers Memphis, TN approximately three years. During this time, I was subjected to many Department of Transportation urinalysis and random urinalysis. I never popped positive for anything including alcohol during any of these tests. Three years ago I decided to go to college and receive a bachelor's degree in psychology. So I did, I started college in January 1998 graduated with honors, with a bachelor's of science in psychology in May 2000. I then decided to go on to graduate school. I am currently enrolled at Baylor University Waco, TX in the graduate program for Social Work. The reason why I have now decided to request my discharge to be upgraded is that I have applied for internship with the veterans administration and was told that because of my discharge I can not to any kind of work with the V.A. I spoke with a V.A. counselor, I explained to him that I had three scars on my service record: twice I had been to Captain's mast for article 86 and that I had gone to the Captain's mast for self-medicating and was discharged administratively. He has encouraged me to go through with this request for an upgrade to my discharge. I have some of my service record on microfiche, and was able to make copies of what I have. After reviewing the pages on the microfiche I have been able to see that it seems like I was being charged with more than self medicating, in fact I was being charged with misconduct -drug abuse and commission of a serious offense. I am not exactly sure what the commission of the serious offense was, but I believe it was because I had an unauthorized absence at Portsmouth Naval hospital while I was in O.R School.
I know there is no justifiable reason or anything that I could say that would excuse the fact that I went U.A, but I would like the opportunity to at least explain the immediate circumstances in my life at that time. At that time in my life I was under major stress, my wife had filed for divorce, my grandmother who had raised me all my life had just passed away, and I was having personnel conflicts with some of my superiors at school for two reasons; first, because I had just went to Captain's mast for being U.A for 16 minutes and second, I had asked to be excuse from scrubbing in on a D&E (dilation extraction) procedure because of my personal beliefs against abortion. I was told that if I refused to scrub in that it would drastically affect my grade. I had asked for two weeks leave to go to Washington state to take care of matters of my grandmother's funeral and estate, I was told that because she was not my immediate family I could not take that much leave from school and that I should get my priorities straight and decide whether or not I wanted to stay in O.R school. I openly admit that the decision that I made to leave was a foolish one, but when I came back I went to Captain's mast and served my rewarded sentence, lost my position in O.R school, and went back to the Marine Corps base Camp Lejeune NC. I do not think it is just or fair for me to be brought up on them charges again. This is what seems to have happened when Mr. K____ from Commanding General, 2nd Force Servers Support Group, Fleet Marine force, Atlantic recommended that I be separated with an Other Than Honorable condition discharge by reason of misconduct due to drug abuse and commission of a serious offense. I feel that I was punished for what Mr. K_____ is considering commission of a serious offense back at Portsmouth Naval hospital on 09 October 1998 as I was rewarded 45 days restriction, 45 days extra duty, forfeiture of $464 for two months, and reduction in rank. I have a great passion for military personnel, especially veterans. My father is in Vietnam vet, his brother died in Vietnam, my eldest brother has three years left till he retires from the army, my other brother and my sister both did 4 years of service (I in the Air Force I in the army), and I served in the Navy for approximately 5 1/2 years and have grown up around military personnel all my life. That is one reason why it is especially important for me to upgrade my discharge. Another reason is that I have a great desire and now the educational ability to work with veterans in the Counseling process in the field of social work. So I D___ M____ __-__-___, do hereby put myself at the mercy of this board and respectfully request that my discharge be upgraded to a General Under Honorable conditions discharge. Sincerely,

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of Bachelor of Science Degree (Crichton College)
Copy of Certificate of Recognition of Outstanding Merits and Accomplishment (American University)
Copy of Certificate for Continuing Education Program (Out of the Box: A Rapid, Practical, Spiritual Method for Psychotherapists with W____ B____, Ph.D)
Copy of Certificate for Continuing Education Program (Brief Therapy with Couples: Solutions-Building Approach with I____ K. B___, M.S.S.W.
Copies of CO's Recommendation for Separation (Partial Page) (2)
Copies from Medical Record (2pgs) (2)
Letter from Applicant
PART II - SUMMARY OF SERVICE

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

 Period of Service Under Review :
Date of Enlistment: 850507               Date of Discharge: 901109

 Length of Service (years, months, days):

         Active: 05 06 03
         Inactive: None

 Age at Entry: 18                          Years Contracted: 4 (36 months extension)

 Education Level: 12                        AFQT: 63

 Highest Rate: HM3

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 3.32 (8)    Behavior: 3.40 (9)                OTA: 3.42

 Military Decorations: None

 Unit/Campaign/Service Awards: MUC, SSDR, Navy Pistol Marksmanship Medal (Expert), Navy Rifle Marksmanship Medal (Expert)

Days of Unauthorized Absence: 33

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

 Chronological Listing of Significant Service Events :

880212:  Retention Warning: Advised of deficiency (Unauthorized absence and Making a False Official Statement), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

880212:  NJP for violation of UCMJ, Article 86: (2 Specs), absent from place of duty, violation of UCMJ, Article 107: (2 Specs), with intent to deceive.
         Award: Forfeiture of $250.00 per month for 1 month. No indication of appeal in the record.

890731:  Retention Warning: Advised of deficiency (Reporting late to assigned place of duty x 3), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

891211:  NJP for violation of UCMJ, Article 86: UA from 0615-0631, 890815 and UA from 0645, 890907 to 0145, 891009[33days].
         Award: Forfeiture of $464.00 per month for 2 months, restriction and extra duty for 45 days, reduction to E-3. No indication of appeal in the record.

900711:  NJP for violation of UCMJ, Article 112a: Wrongfully used codeine.
         Award: Reduction to E-2. No indication of appeal in the record.

900718:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by your service record.

900723:          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.

900727:  Commanding officer recommended discharge under honorable conditions (general) by reason of misconduct due to drug abuse (use).

900814:  Medical record states applicant was referred to Medical Clinic for evaluation for drug dependency, member was positive on command unit sweep, for codeine(Tylenol #3) in which member states was RX by NAVHOSP PORTSMOUTH. This fact was not documented in member service record. A SANCO interview of member does not indicate ETOH & Drug Abuse. Member is now awaiting ADMIN SEP, at this time, it is requested this applicant be interviewed by Medical Officer to R/O Dependency of Drug Abuse.
900905:  SJA review determined the case sufficient in law and fact.

900907:  Commanding General, 2d Force Service Support Group, Fleet Marine Force, Atlantic concurs with the recommendation of Commanding Officer that the applicant be discharged other than honorable conditions by reason of misconduct due to drug abuse. But the requirement of NAVMILPERSMAN section 3630600 paragraph 2 that counseling must have occurred at the parent command rather that during the current enlistment, I would have recommended separation on the basis of a pattern of misconduct.

900925:  CNMPC recommended that applicant be reprocessed for discharge by reason of misconduct due to drug abuse and commission of a serious offense.
901009:  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 your service record.

901016:          Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

901023:  Commanding Officer, 2d Medical Battalion recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and commission of serious offense.

901101:  CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 901109 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 the applicant’s issue (letter) discussed the circumstances of his discharge. The Board found no impropriety or inequity in the discharge. The NDRB is authorized to consider post-service factors in the re characterization of a discharge. 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, may be considered by the NDRB. The applicant failed to provide documentary evidence to demonstrate his sobriety, positive community service, employment history, and clean police record. Relief is not warranted.

The applicant is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Representation at personal appearance hearing is recommended.




Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560A), Change 11, effective
14 Jun 90 until 14 Aug 91, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO 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 view DoD Directive 1332.28 and other Decisional Documents by going online at " afls10.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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