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NAVY | DRB | 2002_Navy | ND02-00415
Original file (ND02-00415.rtf) Auto-classification: Denied


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

ex-YNSA, USN
Docket No. ND02-00415

Applicant’s Request
The application for discharge review, received 020221, 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 Milwaukee, WI. The Applicant listed the Disabled American Veterans as the representative on the DD Form 293. In the acknowledgement letter to the Applicant, she was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington DC area. 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.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. I am respectfully requesting that all the enclosed information be review in order to determin and grant me a discharge up grade from other than honorable to General under honorable conditions.

Since the 15 years I've been out I have continue to be productive member of society inspite of my bout with depression. I work presently assisting veterans with burial and I truly enjoy it.

I'm being treated for my depression and have been for a long period of time.

Last but not least if you look at my medical record - (which I can't seem to get a copy of) you will see where I asked them for help on several occoations.

Also there are errors in my service record which has prevented me from getting some assistunce from the VA for my mental health issues Please consider all information submitted

 I am respectfully requesting that I receive an upgrade on my discharge from other than honorable to General under honorable conditions.

The reasons why I believe that this discharge should be granted is for several reasons;

1. Because I truly enjoyed being in the Navy inspite of some problems I had in adjusting. If I could join again I would. I was honored to serve my country.

2. While in the Navy I was suffering from a mental condition at which I had a hard time admitting. I often experienced bouts of depression. But at that time I thought that a person who was depressed was crazy and belonged in the crazy house. So I was afraid and also ashamed to admitt. I started having periods of depression after going to NAS Whiting Field. Later while on the ship I did tell them that I was feeling depressed and they didn't offer any treatment to this so I just tried to deal with it the best way I could.

3. After I left the Navy I have been seeing a physician for my depression since 1990 when I was able to come to terms with the fact that this will be a life long illness.

4. I am and have been a productive member of society. I am submitting some letters from friends and professional whom know me and know that I enjoy being a veteran and serving veterans.

 5. Presently I am working at the Southern Wisconsin Veteran Memorial Cemetery as a Program Assistant II. I love my job and everyone whom I comes in contact with can testify to that. I enjoy assist veterans and the families with their burial needs.

6. I also am a regular participant in the annual Veterans Day, Memorial Day and Fourth of July parade in the local area standing proudly representing women veterans statue.

7. I truly believe that if I would have had some assistance with the depression I would not be writing this letter now. Yet I cannot change the past and I have definitely learned from it and I have not allowed it to change m y support for the Armed forces.

8. Last but not least I feel that my upgrade should be given based on the fact that I did serve 3 years and 9 months of my obligated services.

9. Please approve my request.

Respectfully Submitted [Applicant]
10. 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 the request for a discharge upgrade of the current Other Than Honorable Discharge ( OTH ) to a General, Under Honorable Conditions.

The FSM served on active service from June 8, 1983 to March 9, 1987 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 she was suffering from a mental health disability, which lead to the use of drugs. It appears the mental health issue created the need for self medication as she was afraid to ask for assistance and / or counseling, with a one-time exception. When aboard ship she advised the chain of command that she was depressed, and no action was taken.

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 desire for equitable relief, and has submitted a number of character reference letters from those that know her as not only a friend but a professional. She goes on to note that for the last fifteen years she has been a productive member of society, despite the depression.

That since discharge she has worked at the Southern Wisconsin Veteran Memorial Cemetery as a Program Assistant II, assisting veterans and their surviving family members with the burial needs, devoting her life since discharge, to the service of others.

Also noting that although she cannot change the past she has learned from it, became a productive member of society, and a positive supporter of the Armed Forces.

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]

11. I am requesting that you take a close look at the following enclosures when making a decision toward my upgrade. The reason why I am asking this is because some of the information that is in my service record is either incorrect or either documented twice. Also this information would also support a fact that I stated in the previously submitted letter dated Jauary 23, 2002.

If you take a look at enclosure (1) [Report of Medical History (form 93) dtd 20FEB87] you will see that when asked if I experience depression I checked yes. Which supports that I did have the depression in the Navy. Also the fact that I attempted suicide while in the Navy shows signs of unstability mentally. Which if treated then I may not have experience some of the problems I did.

Enclosure (2) [NAVPERS 1070/607 Court Memorandum dtd 83DEC09] which is documentation of a NJP does not even belong to me. If you take a close look the bottom of this document you will see that it belongs to a sailor name R_ D_ F_ [SSN]. This individual was not stationed at the same command and his name is neither close to mine. So the fact that this was taken into consideration for reasons of denial of my benefit requests is wrong.

enclosure (3) [NAVPERS 1070/607 Court Memorandum dtd 87FEB12] and (4) [NAVPERS 1070/607 Court Memorandum dtd 87FEB12] are the same infractions that was placed in my service record twice. I feel that one of these NJP's should be take out of my record and should not be consider in the decision process.

Basicly I review my service record and just with these mistakes I'm wondering what other mistakes were made. Like documenting my request for help with my depression. I am respectfully requesting that you take this all into consideration when making the decision to grant me a correction to my discharge of General under honorable condition.

Respectfully Submitted [Applicant]
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant's DD Form 214
Thirty-seven pages from Applicant's service record to include the file error twice
Letter from Applicant dated January 23, 2002
Job/character reference dated January 24, 2002
Character reference dated January 24, 2002
Letter from C & P Assessment and Counseling Services dated January 23, 2002
Thank you letter to Applicant from Veterans Affairs dated November 26, 2001
Letter from Director, Veterans Affairs dated September 14, 2001
E-mail - Subject: Letter of appreciation dated August 17, 2001
Two notices of examination results
Newspaper article from Kenosha News dated July 3, 2000
Handwritten thank you note to Applicant
Handwritten thank you note to Applicant dated June 28, 2001
Handwritten thank you note to Applicant dated June 20, 2001
Handwritten thank you note to Applicant, undated
Handwritten thank you note to Applicant dated August 17, 2001
Handwritten thank you note to Applicant dated June 20, 2001

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     830526 - 830607  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 830608               Date of Discharge: 870309

 Length of Service (years, months, days):

         Active: 03 09 02
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 49

 Highest Rate: YNSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.34 (5)    Behavior: 3.36 (5)                OTA: 3.32

 Military Decorations: None

 Unit/Campaign/Service Awards: NUC

 Days of Unauthorized Absence: (27) 841218-850115

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 :

830611:  Applicant briefed on Navy's policy on drug and alcohol abuse.

 840918:  NJP for violation of UCMJ, Article 91: Insubordination towards a non commissioned officer on 840913.
         Award: Forfeiture of $188 per month for 1 month, restriction for 15 days, reduction to YNSA, oral admonition. Reduction suspended for 6 months. No indication of appeal in the record.
841116:  Suspended reduction to YNSA awarded at CO's NJP of 840918 vacated due to continued misconduct.
841116:  Retention Warning: Advised of deficiency (Disrespectful in language toward a superior petty officer), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

841218:  Applicant in unauthorized absence status from 1600 on 841218 to 0730 on 850115 (27 days/ surrendered).

 850115:  NJP for violation of UCMJ, Article 86 (2 specs): (1) Go from appointed place of duty on 841210; (2) Unauthorized absence from 1600 on 841218 to 0730 on 850115 (27 days/surrendered); violation of UCMJ, Article 112A: Wrongfully use controlled substance on 841212.
         Award: Forfeiture of $310 per month for 2 months, restriction for 30 days, reduction to YNSR, reprimand in writing. No indication of appeal in the record.
850124:  Retention Warning: Advised of deficiency (Unauthorized absence from appointed place of duty on 841210, unauthorized absence from unit on 841218 until 850115, wrongful use of a controlled substance, to wit: marijuana, and dishonorably failing to maintain funds in check account.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

850318:  Applicant admitted to Substance Abuse Department Naval Hospital, Pensacola, FL for 43 days at her command's direction over the Applicant's objections for the treatment of alcohol dependence (alcoholism).

 870212:  NJP for violation of UCMJ, Article 112A: Wrongful use of cocaine, as evidenced by positive random urinalysis taken on 870120.
         Award: Forfeiture of $369 per month for 2 months, restriction and extra duty for 45 days, reduction to YNSA. No indication of appeal in the record.
870219:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse. The factual basis of this action is the Applicant's THC-positive unit-sweep urinalysis on or about 841212 and a cocaine-positive random urinalysis taken in January of 1987.
870219:  Applicant advised of her rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
870226:  Psychiatric Evaluation, Psychiatry Department, Naval Hospital, Charleston, SC: Initial diagnostic impression: 1) Mixed personality disorder with borderline and immature features - severe. 2) Suicide gesture.

870226:  Drug and Alcohol Abuse Report: Cocaine abuse, 1 to 3 times per week, Jun83 - Jan87, ashore off duty. Random urinalysis, NAVDRUGLAB Jacksonville, FL 091219Z Feb 87. Commanding Officer recommended separation, second incident, warning not made on page 13 of service record. Comments: YNSA [Applicant]'s random urine sample tested positive for cocaine. She has no potential for further naval service and is being processed for separation. Performance Average is 3.6.

870226:  Medical officer found Applicant dependent and recommended separation via VA hospital.

870227:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). Commanding Officer’s comments: "YN3 [Applicant]'s two incidents of drug abuse are clear indications of her refusal to adhere to the Navy's zero tolerance policy. YN3 [Applicant] has been at captain's mast on three separate occasions which, in addition to the drug incidents, include an extended unauthorized absence (29 days). YN3 [Applicant] was not processed for pattern of misconduct because all counseling entries were made at her previous commands. Subsequent to notification, YN3 [Applicant] made a suicidal gesture, and her psychiatrist recommends immediate separation; therefore, I am requesting expeditious handling of this case. She has no potential for future service. I recommend that she separated from the Navy with an other than honorable discharge."

870307:  COMNAVMILPERSCOM WASHINGTON DC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use); directs Applicant's command to offer her in-patient treatment at a VA hospital.

870309:  Applicant declines VA inpatient treatment prior to separation.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 870309 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 states that she was honored to serve her country and that she truly enjoyed her time in the Navy. 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. The Board's review of the Applicant's record reflects her discharge was proper and equitable. Relief is denied.

Issues 2, 7, and 10: The Applicant contends that her discharge was the result of a depressive mental condition that led to the use of drugs. The Applicant further contends that had this condition been properly addressed, her misconduct would have been precluded; however, there is no evidence in the record that the Applicant sought professional treatment for this condition. Any personality disorders that the Applicant experienced while on active duty, however, did not mitigate her use of illegal drugs. There is credible evidence in the record that the Applicant used illegal drugs and that she was accountable for her actions. This evidence of drug abuse (use) warranted processing for separation normally under other than honorable conditions. Relief on this basis is denied.

With regard to treatment, the Applicant, prior to separation, was offered an in-patient program at a VA hospital but refused such treatment on 870309. Earlier in the enlistment, on 850318, the Applicant was admitted at her command's direction and over the Applicant's objections for the treatment of alcoholism.

Issues 3-6, and 10: The Applicant provides evidence of positive post-service conduct for consideration by the NDRB and requests that this documentation be considered in the recharacterization of her discharge. 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. Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understand-ing of the Applicant's performance and conduct during the period of service under review, may be considered. While the NDRB is authorized to consider post-service factors, the evidence provided by the Applicant to the Board was deemed not sufficient to warrant a recharacterization of her discharge. Relief on this basis is denied.

Issue 8, 9: The Applicant pleads that her request to upgrade her discharge characterization be approved based upon the 45 months of service completed against her enlistment contract. The Applicant’s conduct, and not her time served, forms the primary basis in determining her characterization of service. A characterization of service of under other than honorable conditions is warranted when the service member’s conduct constitutes a significant departure from that expected of a sailor. The Applicant’s service is equitably characterized as being performed under other than honorable conditions due to the Applicant's drug use. Relief on this basis is denied.

Issue 11: The Applicant contends that some of the information in her service record is either incorrect or documented twice and this has prevented her from obtaining proper consideration of her case. While this issue, with respect to VA treatment, is beyond the NDRB's authority to consider, the Board did find validity of the errors. The Board did discount the NAVPERS 1070/607 Court Memorandum of 831209, recognizing that this document belongs to another service member, and has notified the National Personnel Records Center for correction. The Board also recognized that her records included two NAVPERS 1070/607 Court Memorandums of 870212 for the same infraction. The Board thoroughly reviewed all documentation and ensured only the accurate record of the Applicant was considered in its decision.


 Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560), Change 7/86, effective
15 Dec 86 until 14 Jun 87, 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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