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NAVY | DRB | 2003_Navy | ND03-01219
Original file (ND03-01219.rtf) Auto-classification: Denied


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

ex-STGSR, USN
Docket No. ND03-01219

Applicant’s Request
The application for discharge review was received on 20030710. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record review. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that he 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 elected a personal appearance hearing and obtained representation from the Disabled American Veterans. However, t he Applicant failed to respond to the scheduling notice by the deadline date and the Applicant’s case was converted to a documentary review.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20040514. 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 HONORABLE CONDITIONS (GENERAL)/Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “Issue 1.) Respectfully request that the discharge review board grant my request to have my discharge upgraded to Honorable rather than the current General Under Honorable.

2. Issue 2.) My undesirable discharge was inequitable because it was based on two isolated incidents in almost four years of service.

3. Issue 3.) My medical condition, Bipolar:manic-depression, ADD/ADHD actually requires me to take the exact same substance I was discharged for using. Though my actions weren’t justified, it is my claim that I was actually self-medicating myself for my disorders.

4. Issue 4.) I have continually tried to better myself through school and work and have always brought that Navy pride with me.

5. Issue 5.) Request that my GI Bill be reinstated, if not to at least have the money that I put into it refunded.

6. Issue 6.) I am currently on disability.

7. Issue 7.) Would like to use my GI bill to go to school.”

Additional issues submitted by Applicant’s representative (Disabled American Veterans):

 8. “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 General Under Honorable Conditions, to that of Honorable.

The FSM served on active service from July 7, 1985 to October 6, 1989 at which time he was discharged due to misconduct.

The FSM contends the current discharge is improper because it was based on two isolated incidents that occurred in four years, and the same were caused or contributed too by his psychiatric disability. Also he states that par of his discharge is based on using drugs, the same drugs which were prescribed for his mental disorder.

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 addition, the FSM states he seeks equitable relief s that he may better himself by using his G.I. Bill or receive a refund of the money to do the same on his own. As he continuously tries to better himself through school and work.

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.

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”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Statement in support of claim from Applicant, dated April 10, 2003
Letter verifying health care, dated January 21, 2003 (2)
Applicant’s DD Form 214
Rx for Applicant from Barton Memorial Hospital, dated January 21, 2003 (2)
Letter from Applicant, undated
Credit hours for current enrollment from Lake Tahoe Community College, dated September 3, 2003
Medical report, dated February 24, 2003 (8 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     850710 - 850711  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 850712               Date of Discharge: 891006

 Length of Service (years, months, days):

         Active: 04 02 25         Does not exclude lost time
         Inactive: None

 Age at Entry: 17                          Years Contracted: 4

 Education Level: 11 GED           AFQT: 87

 Highest Rate: STG3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.70 (4)    Behavior: 3.85 (4)                OTA: 3.80

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, Letter of Commendation

 Days of Unauthorized Absence: 46

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

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

 Chronological Listing of Significant Service Events :

870316:  NJP for violation of UCMJ, Article 92: Failure to obey a lawful order.
         Award: Forfeiture of $150 per month for 1 month, extra duty for 30 days. No indication of appeal in the record.
870417:  NJP for violation of UCMJ, Article 92: Derelict in duty.
         Award: Forfeiture of $100 per month for 1 month, restriction for 10 days, reduction to STGSN. No indication of appeal in the record.
890321:  NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance, to wit: methamphetamine/amphetamines.
         Award: Forfeiture of $446 per month for 2 months, restriction and extra duty for 45 days, reduction to STGSN. No indication of appeal in the record.
890324:  Medical evaluation for drug dependency found no evidence of physical or psychological dependent on methamphetamine or ETOH.

890602:  Special Court Martial:
         Charge I: violation of the UCMJ, Article 134:
         Specification: Break restriction on 890401.
         Charge II: violation of the UCMJ, Article 117:
         Specification: Wrongfully use provoking words towards seaman on 890401, to wit: “You know what we do to boys like you back in Mississippi.”
         Charge III: violation of the UCMJ, Article 92:
         Specification: Violate a lawful general regulation by possessing alcoholic liquor on a naval vessel on 890401.
         Findings: to Charge I and II and specifications thereunder, guilty. Charge III and specification thereunder, not guilty.
         Sentence: CHL for 120 days, reprimanded, reduction to STGSR
         CA 890911: Sentence approved and ordered executed.

890602:  Applicant to confinement.

890709:  Applicant from confinement.

890727:  NJP for violation of UCMJ, Article 92: Fail to obey a lawful order on 890726.
         Award: Restriction and extra duty for 21 days. Suspend all but 15 days for 6 months. No indication of appeal in the record.
890802:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense to wit: failure to obey a lawful order and misconduct due to drug abuse as evidenced by the wrongful use of a controlled substance, to wit: amphetamine/methamphetamine.
890802:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
890922:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to commission of a serious offense and drug abuse, that the misconduct warranted separation, and recommended discharge under honorable conditions (general).

890929:  Commanding Officer recommended discharge under honorable conditions (general) by reason of due to commission of a serious offense and misconduct due to drug abuse (use).

891006:  Commanding Officer’s letter states Applicant discharged under honorable conditions (general) by reason of misconduct due to drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19891006 under honorable conditions (general) 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).

Issues 1 and 2. The Applicant’s discharge was based on several minor disciplinary infractions, not one incident. A characterization of service of other than honorable is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. The Applicant’s service was marred by award of nonjudicial punishment (NJP) on four occasions and one special court-martial. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his disobedience of the orders and directives which regulate good order and discipline in the naval service, and falls short of that required for an honorable characterization of service. An upgrade to honorable would be inappropriate. It must be noted that most Sailors serve honorably and well and therefore earn honorable discharges. In fairness to those Sailors, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. Relief denied.

Issue 3. There is credible evidence in the record that the Applicant used illegal drugs. Mandatory processing for separation is required for sailors who abuse illegal drugs. Separation under these conditions generally results in characterization of service under other than honorable conditions. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. The Applicant’s claim that his medical condition at the time required the use of illegal drugs is also not supported by the evidence. The Board found no indications in t he record that proper naval medical authorities had prescribed use of the drugs for which he was determined to have illegally used. Relief denied.

Issues 4 and 6. The following is provided for the edification of the Applicant. 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 naval service. The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. At this time, the Applicant has not provided sufficient documentation for the Board to consider. Therefore, no relief will be granted.

Issues 5 and 7. The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

Issue 8. After reviewing the Applicant's entire service record, the Board found that the characterization of the Applicant's discharge as other than honorable was equitable and consistent with the characterization of discharge given others in similar circumstances. Therefore, no relief will be granted.


Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560A), Change 6, effective 11 Jan 89 until 13 Jun 90, 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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