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NAVY | DRB | 2003_Navy | ND03-00385
Original file (ND03-00385.rtf) Auto-classification: Denied


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

, ex-AR, USN
Docket No. ND03-00385

Applicant’s Request
The application for discharge review was received on 20030107. The Applicant’s legal guardian requests the characterization of service received at the time of Applicant’s discharge be changed to general/under honorable conditions. The Applicant’s legal guardian requests a documentary record review. The Applicant’s legal guardian did not list any representative on the DD Form 293. In the acknowledgement letter, the Applicant’s legal guardian was informed that the Applicant was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington D.C. area. Applicant’s legal guardian did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040423. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. 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 stated

Applicant’s legal guardian’s issues, as stated on the application:

1. “The discharge is improper and unjust because the Applicant suffered from a major mental illness that impaired his mental faculties during and prior to his offenses. J_’s (Applicant’s) mental illness is supported by the attached medical records.

His service records state that he was absent from duty and men’s muster some 21 times dating from August 1986 which in itself should have suggested mental illness or instability and should have been treated long before his discharge in December 1987.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant’s legal guardian, was considered:
Letter of guardianship, dated January 3, 2002
Statement from legal guardian undated, unsigned
Statement from legal guardian, undated
Medical report from Cabell Huntington Hospital, dated November 5, 1989
Medical report from Huntington Internal Medicine Group, Inc., dated April 15, 1989
Final commitment hearing, dated March 31, 1993
Notification of separation, State of West Virginia, dated May 17, 1993
Letter to Social Security Administration from President, Chili Willis, dated September 16, 1992
Narrative Summary from River Valley Health System, dated October 15, 1997
Statement of Expert Evaluation, undated
Narrative Summary from River Valley Health System, dated October 6, 1998
Prestera Center for Mental Health Services, dated August 28, 2001
Letter from Shawnee Mental Health Center, dated December 19, 2002
Diagnostic assessment, dated September 25, 1998
Psychiatric evaluation, dated September 29, 1998

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     851127 - 860304  ELS
 USNR (DEP)      860321 - 860331  COG
          Active: None

 Period of Service Under Review :
Date of Enlistment: 860401               Date of Discharge: 871231

 Length of Service (years, months, days):

         Active: 01 09 01
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 66

 Highest Rate: AA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 2.80 (1)    Behavior: 1.00 (1)                OTA: 2.80

 Military Decorations: None

 Unit/Campaign/Service Awards: None

 Days of Unauthorized Absence: 1

 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 :

861102:  Applicant arrested 0430, 861102 for driving under the influence, leaving scene of an accident, no driver’s license by the Memphis Police Department.
861104:  Applicant released from the Shelby County Jail at 1545, 861104

 861105:  Civil Conviction: Memphis, TN for violation of driving while under the influence, leaving the scene of an accident, and no driver’s license
 Sentence: Fined $697.75 including court cost, jail for 15 days, probation for 11 months and 29 days, and attend alcohol safety school. Jail for 13 days suspended.
861204:  NJP for violation of UCMJ, Article 86 (2 specs): (1) Unauthorized absence from appointed place of duty on 0530-0715, 861029, (2) Unauthorized absence from 0530, 871103 to 1645, 871104 (1 day).
         Award: Forfeiture of $167 per month for 1 month, extra duty for 14 days. Forfeiture suspended for 6 months. No indication of appeal in the record.
861204:  Retention Warning: Advised of deficiency (Unauthorized absence from appointed place of duty) to wit: notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

 870917:  Drug and Alcohol Abuse Report: Cocaine abuse, less than monthly, ashore off duty. Inspection urinalysis July 1987. Medical officer found Applicant dependent and recommended separation via VA hospital. Commanding Officer recommended separation. Comments: AR H_ (Applicant) exhibits no potential for further naval service. Being processed for separation. OTH recommended. 2 NJPs (1 drug related). RIR as a result of this incident.
870826:  NJP for violation of UCMJ, Article 112A (2 specs): Wrongful use and possession of cocaine on 870622 to 870722.
         Award: Forfeiture of $329 per month for 2 months, restriction and extra duty for 45 days, reduction to AR. No indication of appeal in the record.
870924:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by wrongful use or possession of a controlled substance.
870930:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
871014:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 18 restricted men’s musters from 870826 to 871007.
         Award: Forfeiture of $329 per month for 1 month, restriction and extra duty for 20 days. Forfeiture suspended for 6 months. No indication of appeal in the record.
871102:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

871130:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

871216:  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 19871231 under other than honorable conditions for misconduct due to drug abuse (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: 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. While he may feel that his mental health was a contributing factor, there is insufficient evidence, both in the service record and presented by the Applicant, to show that he was not responsible for his actions while in the Navy. His service record is marred by award of nonjudicial punishment (NJP) on three separate occasions thus substantiating the misconduct . Relief denied.

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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