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NAVY | DRB | 2002_Navy | ND02-00289
Original file (ND02-00289.rtf) Auto-classification: Denied


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

ex-SHSN, USN
Docket No. ND02-00289

Applicant’s Request
The application for discharge review, received 020123, requested that the characterization of service on the discharge be changed to general (under honorable conditions). The Applicant requested a personal appearance discharge review before a traveling panel closest to Atlanta, GA. The Applicant did not list any as the representative on the DD Form 293. In the acknowledgement letter to the Applicant, he was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area. Subsequent to the application, the applicant obtained representation by the Disabled American Veterans. The Applicant failed to respond by the deadline date to a letter requiring the Applicant to notify the Naval Discharge Review Board of intention to be present for the requested personal appearance hearing. Therefore, a documentary review was conducted.


 Decision

A documentary discharge review was conducted in Washington, D.C. on 030221. 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. Applicant discharged in absentia.
PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. Dear Sir or Maam,

I [ Applicant ] (social security number deleted), respectfully request that my discharge be upgraded, because I had change branches of service from the Army to the Navy were I received a honorable discharge. I am citing that I was suffering from mental health issues that lead to my drug use while in the Navy. I had A-School in Meridian Miss. and during that time a blood mobile came on base and drew bloods upon completion of A-school I was sent to Norfolk Va. at the fleet training command Barber school when I was to Report to the Portsmouth Naval Hospital. I as admitted for 2 weeks during which time I was told I was HIV positive and that I had 1 or 2 yrs to live. I was shown a film that showed how cancer and aids ravage the body and I asked was that going to happen to me and was told yes I'm afraid so. I asked how long would it take, and was told about 1 or 2 yrs max. I had no counseling on this matter I was afraid and couldn’t talk to anyone for fear of discrimination so I turned to drugs. And my records would show that up until this point I was a model soldier & sailor. This year marks 18 yrs of having the Aids Virus and if I should die I want to have at lease upgraded my discharge. It was unfair to tell me I would be dead in 2 yrs when they really didn't know much about the virus because its been 18 yrs now and Im still here; I should have had at least the opportunity to get the counseling I so badly needed.

 2. Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Other Than Honorable Discharge ( OTH ) to a General, Under Honorable Conditions.

The FSM served on active service from March 27, 1985 to September 14, 1988 at which time the member was discharged with the OTH discharge by reason of misconduct-drug abuse {use}.

The FSM contends the current discharge is improper because of his prior good service in the United States Army, for which service he received an Honorable discharge. Additionally, that he was suffering from a mental health disability, which lead to the use of drugs. It appears the mental health issue was derived from an instance during a medical review at the Portsmouth Navy Hospital when he was advised that he had contracted the AID's virus and had only a couple of years to live, with no further counseling.

This creates a need for a review of the application of the standard, for the Board to determine that the Applicant's discharge was improper. The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted. See, SECNAVIST 5420.174 (c), Par. (f) (1).

In continuance, the FSM goes onto explain that the problem with his active duty were not derived from conduct, but from his disability, and his records will reflect that he was a model soldier, until the point in time was advised that he had AID's .

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the Applicant submits to the Board's discretionary authority, under SECNAVIST 5420.174C.

Under the premises of equitable relief, we believe the Board can change the character of discharge to reflect a General discharge, and leave that to a determination by the Board .

We ask for the Board's 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.

Respectfully, [DAV National Service Officer]

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None at this time

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     850327 - 850701  COG
         Active: USA                        810720 - 840719  HON

 Period of Service Under Review :
Date of Enlistment: 850702               Date of Discharge: 880914

 Length of Service (years, months, days):

         Active: 03 02 13
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4

 Education Level: 12                        AFQT: 47

 Highest Rate: SH3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.40 (1)    Behavior: 3.40 (1)                OTA: 3.60

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: (67)880708-880913

 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 :

850708:  Applicant briefed on Navy's policy of drug and alcohol abuse.
880311:  NAVDRUGLAB, Norfolk, VA, reported Applicant ’ s urine sample, received 880225, tested positive for cocaine.

880318:  NJP for violation of UCMJ, Article 86 (2 specs): (1) Failed to go to appointed place of duty on 880225, (2) Failed to go to appointed place of duty on 880226; violation of UCMJ, Article 92 (3 specs): (1) Fail to obey law order on 880225, (2) Fail to obey lawful order on 880226, (3) Fail to obey lawful order on 871219, to wit: watching a homosexual video tape in the berthing space; violation of UCMJ, Article 112A: Wrongfully use cocaine on 880225; violation of UCMJ, Article 134 (3 specs): (1) Wrongfully commit indecent act on MMFA on 871106 or 871107, to wit: rubbing [another service member's] penis, (2) Wrongfully commit indecent act on MMFA on 871117 or 871118, (3) Wrongfully commit an indecent act on MMFA on 871219, to wit: grabbing [another service member's] testicles.
         Award: Extra duty for 45 days, reduction to SHSN. No indication of appeal in the record.
880330:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of homosexuality by the Applicant engaging in, attempting to engage in or soliciting another to engage in a homosexual act or acts as evidenced by NIS Report 14Dec87-05NF-1184-8GNA/F and misconduct due to commission of a serious offense and drug abuse as evidenced by service record entries.
880413:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27(b), elected to appear before an Administrative Discharge Board.
880511:  Counseling: Applicant advised of deficiency with respect to his personal behavior; notified of corrective actions and assistance available.

 880517:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed homosexuality by engaging in, attempting to engage in or soliciting another to engage in a homosexual act or acts , misconduct due to commission of a serious offense and misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.
880519:  Commanding Officer recommended discharge under other than honorable conditions by reason of homosexuality, misconduct due to commission of a serious military offense and misconduct due to drug abuse. Commanding Officer's comments: "SNSN M_ is considered to have no potential for further productive naval service based on his demonstrated negative attitude, drug usage and homosexual desires. He has been counselled verbally and in writing but he feels that everyone is harrassing [sic] him failing to account for his own actions."

880520:  Medical evaluation for drug abuse found the Applicant to be a drug abuser, not to be drug dependent.
880708:  Applicant to unauthorized absence at 0900 on 880708.

880808:  Applicant declared a deserter.

 880818:  COMNAVMILPERSCOM directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

880906:  PERSUPPDET PORTSMOUTH VA requests authorization to discharge Applicant in absentia.

880910:  COMNAVMILPERSCOM granted authority for immediate discharge of Applicant without return to military control (in absentia).

880913:  Applicant discharged in absentia. Authority: COMNAVMILPERSCOM
         WASHINGTON DC message 101905Z SEP 88.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged, in absentia, on 880914 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).

Issue 1: The Applicant contends that his discharge should be the result of a disability (i.e., being diagnosed as HIV-positive during "A" School) and not of his misconduct. The Applicant further contends that this disability led to a deterioration of his mental health that resulted in his drug use. The NDRB recognizes that serving in the U.S. Navy is challenging and that this country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. Personal problems the Applicant faced while on active duty, however, did not mitigate his use of illegal drugs. There is credible evidence in the record that the Applicant used illegal drugs and that he was accountable for his actions. This evidence of drug abuse (use) warranted processing for separation normally under other than honorable conditions. Relief is therefore denied.

Administrative separation for drug abuse is normally based on a single incident. The Applicant's positive test for drug use warranted processing for administrative separation under other than honorable conditions. The Administrative Discharge Board on 880517, by unanimous vote, found that the Applicant had committed misconduct due to drug abuse (use) and that the misconduct warranted separation from military service. The Admini-strative Discharge Board further recommended discharge under other than honorable conditions.

The Applicant also contends that his service records should warrant a characterization of general (under honorable conditions). The Applicant’s prior honorable service in the US Army, his performance and behavior markings, and overall service record do not mitigate his use of illegal drugs. The service records that the Board reviewed, to include the nonjudicial proceedings of 880318, the Individual Counseling Record of 880511, and the Commanding Officer's recommendation within the Notice of Proposed Action of 880329 indicate that the Applicant’s discharge characterization accurately reflects his service to his country.

The following is provided for the edification of the Applicant. There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct in the civilian life subsequent to leaving the service. However, the NDRB is authorized to consider post-service factors in the recharacteriza-tion of a discharge. 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. Verifiable proof of 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. E vidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities, and credible evidence of a substance-free lifestyle are examples of verifiable documents that may be provided to receive consideration for relief based on post-service conduct. At this time, the Applicant has not provided such documentation for the Board to consider.


 Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560A), effective 15 Jun 87 until
10 Jan 89, 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 " 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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