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NAVY | DRB | 2001_Navy | ND01-00972
Original file (ND01-00972.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND01-00972

Applicant’s Request
The application for discharge review, received 010725, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to medical reason. The applicant requested a personal appearance hearing before a Traveling Panel closest to Albuquerque, NM. The applicant designated the Disabled American Veterans as the representative on the DD Form 293. In the acknowledgement letter to the applicant, he was informed that Naval Discharge Review Board (NDRB) does not travel, all hearings are held in the Washington, DC area and the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020221. 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 and reason for discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

 1. Please consider an upgrade to an honorable discharge due to medical reasons. During active duty in the United States Navy, I did not realize I had a Bi-polar Disorder. The condition produced confusion, forgetfulness, difficulty in concentration and attention, resulting in poor work performance. I used poor judgment when I tested positive for marijuana, which only made things worse. The inappropriate behavior was beyond my control, and without pre-meditation. The bi-polar condition had me at a great risk for substance abuse, and dramatization. An effort was made to be responsible, and have accountability for my actions. However now that I know I have an illness which is chronic and complex in nature, and require medication maintenance I am taking the responsibility to manage the illness with therapeutic interventions, and intensive case management, and social support. I was proud to have served in the United States Navy. I did not want to be discharged from the military. It is a great disappointment for both parties. I had no past mental health history prior to military service. The whole experience has been traumatizing, and depressing. I wish I did not have such an illness that is long term, and cannot be cured. I am truly sorry for my past behavior, and I feel badly for causing others any grief. Please accept my apology. It is very disheartening to me. Thank you for your time and consideration.

Submitted by DAV:
The records reflect the FSM served in the United States Navy from January 5, 2000 to October 2, 2000, with a narrative reason for separation as Misconduct - drug abuse. A letter from the Naval Submarine School dated August 10, 2000 notes a diagnosis of personality disorder and recommends that training and active service be discontinued. After a recommendation from Dr. J_ W_, Ph.D. at the Submarine School diagnosis the problem, noted it would not be helped by military medical treatment and strongly recommended an administrative separation at the convenience of the government.
On the FSM's application he notes responsibility for his inappropriate actions and take responsibility for them, but maintains that because he was not on the appropriate medication, he could not control his actions, and therefore believes the current discharge to be unjust. In light of the FSM's request we ask that in the course of the discharge review, if it is determined that the policies and procedures under which that applicant was discharged differ in material respects from policies and procedures currently applicable on a service wide basis to discharges of the type under consideration that full consideration be given to a change of current discharge on the basis of equity in accordance with SECNAVINST regulations, with additional consideration given to a change of the current UOTHC discharge to that of a General, Under Honorable conditions. We ask for the Boards careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the applicant.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DD Form 214 (2 copies)
Memo from Leading Chief Petty Officer, Sub School Medical, dtd 10 Aug 00
 Mental Health Dept, Naval Ambulatory Care Center, Groton, CT Health Record consultation dtd 24 Jul 2000/9 Aug 2000
Physical Exam dtd 17 Aug 00
Mental Health Dept, Naval Ambulatory Care Center, Groton, CT Health Record consultation dtd 22 Jun 2000
Presbyterian Medical Services, Rio Rancho Family Health Center, R_ K. B_, MA, LPCC ltr of 20 Dec 2000
Presbyterian Medical Services Release of Information Authorization/Consent Form dtd 12-7-00
Mental Health Assessment dtd 11-13-00 (7 pages)
Treatment Plan, prepared by R_ K. B_, MA, LPC
Prescription for Zyprexa 5MG expiring 7/13/02
Prescription information for Bupropion 100MG 01/10/01

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     991027 - 000104  COG

 Period of Service Under Review :
Date of Enlistment: 000105               Date of Discharge: 001002

 Length of Service (years, months, days):

         Active: 00 08 28
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

Education Level: 12                        AFQT: 65

 Highest Rate: SR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 1.0 (1)     Behavior: 1.0 (1)                 OTA: 1.00 (5.0 evals)

 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/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly 3630620.

 Chronological Listing of Significant Service Events :

991027:  Initial enlistment contract documents admission of pre-service marijuana experimentation. Enlistment waiver granted. Applicant briefed upon and certified understanding of the Navy’s policy concerning illegal use of drugs.

000622:  Mental Health Clinic, Naval Ambulatory Care Center, Groton, CT: 20 year old single Caucasian male referred for eval of R/O Depression and alcohol abuse/dependence. Pt reports feelings of depression for the past couple of weeks. Pt was to go home on harp duty leave after graduation from BESS. On the day before graduation he got in trouble for underage drinking. He then went UA for 2 weeks returned and then went UA for 1 more week stating, "I have trouble with running away from my problems". Pt says he is here to figure out why he runs from his problems and goes on spending binges spending his entire paycheck. Pt feels uncomfortable and depressed around other people and he is having difficulty concentrating. Pt denies any past Psych history for himself and states he has an uncle that is on medications for depression. He denies past Psych history for any other family members. He denies any history o seizures, loss of consciousness, allergies or any other medical problems…………… Pt has smoked Marijuana and used Cocaine and LSD stating, "I used them to hide from my problems………Pt denies any past legal problems and has a Captains Mast pending for being UA and under aged drinking. He joined the navy on 5 Jan 00 and does not want to make it a career. Pt does not want out of the navy or submarines and would like to finish his enlistment.
 MSE: Pt was alert and oriented X4 and dressed in clean dungaree uniform with good grooming and hygiene……Thought content is somewhat goal directed, wanting to stay in the Navy. Mood was reported as "Happy and Sad" with a broad/ranging effect. Pt denies any current suicidal or homicidal ideations. When pt went UA he says he thought about killing himself but to many people would get hurt not just him.
000721:  NAVDRUGLAB Jacksonville, FL, report that urinalysis received on 13JUL00 positive for marijuana.

000731:  NJP for violation of UCMJ, Article 86 (3 specs): Unauthorized absence (15 May 2000 - 26 May 00, 12 Jun 00 - 18 Jun 00, 5 Jul 2000 - 10 Jul 2000; violation of UCMJ, Article 92: violation or failure to obey other lawful written order - on 11 May 2000 consume alcohol while underage; violation of UCMJ, Article 112a: wrongful use, possession, etc., of controlled substance - use marijuana; violation of UCMJ, Article 134: check, worthless, making and uttering - by dishonorably failing to maintain funds.
         Award: Oral reprimand, forfeiture of $502 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.
000801:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
000807:  Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.
000809:  Mental Health Dept, Naval Ambulatory Care Center, Groton, CT: SR (Applicant) referred for eval after he went UA on three separate occasions. He also tested positive for marijuana………….His MMPI-2 test scores suggest very severe psychopathology manifested by deeply ingrained depressive features, social withdrawal with associated anxiety and agitation that frequently results in loss of control. The depression and agitation are usually sufficient to produce confusion, forgetfulness, and difficulties in concentration and attention.
         Assessment: Axis I- Depressive Disorder, NOS; AXIS II -Personality Disorder, NOS with dependent and borderline features.
         Plan: Member suffers from a long-standing and very severe personality disorder that will not benefits from treatment at a Navy mental health facility. Strongly recommend he be considered for expeditious admin separation at the convenience of the government. He will be seen for follow-up at the mental health clinic until he is discharged.

000810:  Submarine School Medical: Applicant disqualified from submarine duty due to Personality Disorder. Waiver not recommended, recommend admin separation.
000817:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). Commanding officer’s comments (verbatim): "On 31 July 2000, SR (Applicant)attended Commanding Officer's Non judicial Punishment for violation of the UCMJ Article 86 (Unauthorized Absence), 3 specifications, Article 92 (Violation or failure to obey other lawful written order), Article 112a (Wrongful use of a controlled substance), and Article 134 (Check, worthless, making and uttering-by dishonorable failing to maintain funds). His conduct is detrimental to good order and discipline in the Naval service."

000817:  Separation Physical listed a diagnosis of Personality & Depressive Disorder, NOS - NCD & Alcohol abuse, Marijuana use.

000918:  COMSUBGRU TWO 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 001002 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).

The applicant’s issue asserts that his medical condition mitigated his misconduct and that the reason for discharge should be changed to: medical reason. The NDRB found no evidence that the applicant was not responsible for his actions or should not have been held accountable for his misconduct while on active duty. Relief is denied.

 The applicant’s representative, DAV, states: “On the FSM's application he notes responsibility for his inappropriate actions and take responsibility for them, but maintains that because he was not on the appropriate medication, he could not control his actions, and therefore believes the current discharge to be unjust.” The NDRB disagrees. The Board found the applicant was responsible for his actions while on active duty. The applicant’s personality disorder did not excuse his misconduct. The applicant did not present any evidence, other than his own assertion, that he was unable to control his actions. Without such substantiating evidence, this panel must find that he was responsible for his actions. Relief is denied.

Regarding the second DAV issue, the Board found the policies and procedures under which that applicant was discharged did not differ in material respects from policies and procedures currently applicable on a service wide basis to discharges of the type under consideration. The Board found the discharge proper and equitable. Relief on this basis is not warranted.

The NDRB, under its responsibility to examine the propriety and equity of an applicant's discharge, will change the reason for discharge if such a change is warranted. The summary of service clearly documents that misconduct- drug abuse was the reason the applicant was discharged. No other Narrative Reason for Separation could more clearly describe why the applicant was discharged. To change the Narrative Reason Separation would be inappropriate.

The following is provided for the benefit of the applicant. Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question. No such error or injustice occurred during the applicant’s enlistment. Additionally, 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 civilian life, subsequent to leaving the service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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. Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge. Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for clemency, based on post-service conduct. The applicant did not provide any of these documents. He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge. The applicant can provide additional documentation to support any claims of post-service accomplishments at that time. Legal representation at a personal appearance hearing is highly recommended but not required.

Pertinent Regulation/Law (at time of discharge)

 A . The Naval Military Personnel Manual, (NAVPERS 15560C), Change 27, effective 27 March 2000 - 11 Feb 2001, Article 1910-146 (formerly 3630620), Separation 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 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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