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NAVY | DRB | 2004_Navy | ND04-00038
Original file (ND04-00038.rtf) Auto-classification: Denied


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

ex-SA, USNR
Docket No. ND04-00038

Applicant’s Request
The application for discharge review was received on 20031001. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review. The Applicant requests a personal appearance hearing before the board in the Washington National Capital Region. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050214. 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, authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

 1. “My discharge was inequitable because it was based on an isolated incident that was brought on by extremely high level of stress. I joined the Navy at a very late age in life I was 28 years old when I enlisted. I was an only child and a single parent. My mother and I never really got along especially after my brother past away at the age of 20; he died in his sleep due to brain aneurism that had burst. It happened at a time when my mother was away during her drill weekend. Despite the fact that my mother and I didn’t see eye to eye on any occasion we had a common interest & love my son and the military. When I had enlisted into the Navy, my mom had 20 years in the National Guard, therefore the day I graduate from the Naval Recruit Command in Orlando, FL in July of 1994, was the second time she was every proud of me, but the first time that she actually told me.

Shortly after arriving to my first duty station at Naval Air Station Corpus Christie in Aug of 94 my mother was diagnosed with Multiple Myeloma - Bone Cancer. Not only was I my mother’s only child but she was also raising my only son who was 4 years old at the time. Within a month times, the cancer had spread throughout my mother’s body. I had put in a leave request to fly home to get my son and check on things. I asked my mother if she wanted to me to come home, she stated no. I received a phone call from home telling me that I needed to do what I had to do to come home, because my mom was taking a turn for the worse... I followed all the military procedures and requested to be reassigned close to home.

I was reassigned to Naval Base Lakehurst, which was an hour away from my home located in Trenton, NJ. My mother was going through her treatment and was very depressed; my son was very young and had to endure the pain of watching his grandmother literally pass away in front of him. The stress of sitting back and watching my mother being sick, crying all the time because she was in so much pain, administering her IV treatments, taking her back and forth to her doctor’s appointment, basically watching her deteriorate at the age of 48 was more than I could bear. She fought her illness but when she received a medical discharge after 20 years of service in NJ National Guard and went out on permanent disability after 25 years of public service for the State of NJ. That took its toll. Therefore I was not only taking care of my mother, but I was raising my son alone, and my family was constantly telling me that I didn’t care about my mom and what 1 was doing wrong daily. I was so stressed out that I had to go to medical numerous of times because of the spasms that I had in my back. I went and sought counseling and nothing was working. This was on going; finally my mother received a bone marrow transplant from my aunt. But what they failed to explain to her was the side effects of the transplant. Not only did my mother have bone cancer, but she contracted Graves Host which is a disease of the liver and other medical problems, which included severe upper respiratory problems. She had to have oxygen around the clock to breath. I couldn’t take it any more, my mom was constantly crying and in and out of the hospital, my son was upset, my family was unbearable telling me that I wasn’t doing anything for my mom, except waiting for her to die so I could collect her insurance money. I would drive one hour each way to work to Lakehurst to sit a desk and do nothing, because the LTCDR and the Chief were not sympathetic. I had no support not from home or from work. The only time I had a peace of mind was my 2 hour drive alone. I had to maintain a strong front for my son. A family member of mines was dealing drugs at the times and he was also smoking. He knew that I was in the military and my career was at risk if my urine came up dirty. My mom had to go back to the hospital; the ambulance was very common to our address. My cousin’s were sitting around smoking & drinking I was upset because of my mom and everything that was going on.

In June of 1995 I was found in violation of Article 112a, Uniform Code of Military Justice, 10 USC § 912a. Once the results of my urine came back I was devastated. Because I knew it was the end of the beginning of my career. When I went to explain to my LTCDR what happen, she assumed the worst and told me that I had a problem and needed help. I never smoked the stuff, I was in a room with family & friends who were smoking and drinking. The sole purpose for me entering into the military was to get away from my family and to give my son a normal life with family values, but it was gone just like that. My chief at the time treated me so badly every day at work from that point on. She made my life a living nightmare, she would threaten, she would call me a drug addict, and she literally berated me in front of my peers. Not only did I have to deal with the problems at home but they had gotten worse at work. So I did what was any other person from the inner city would do. “I used and I drank”, because I knew that my military career was over. Despite the wonderful reference of character letters that I had received from superiors it was not enough.

Any type of drug use outside of a Physician care is inexcusable. Although I cannot change the past, I can attempt to correct it. As I look back if the had the support of just one family member or co-worker, I may not have exercised such poor judgment, but I didn’t have any support. We all join the military for various reasons, my reason was a personal goal that I wanted to achieve and I did, until the trials and tribulations of life threw in monkey wrench that I was unprepared for. I lost a promising career in the military, a personal goal that I had worked for and reached and it was gone just like that. I have been living with this for 8 years and words cannot express how I truly feel. I have regretted my actions and although my mother never knew why I was discharged. She can now rest peacefully knowing that I am doing everything within my means to take responsibility for my actions and continuing taking care of my son. My son is now a freshman in high school and will be joining the JRROTC program his sophomore year. Despite the fact that we still leave in the city I have work very closing with various organizations within the city dealing with youth programs. I am currently in school, and its hard when I’m living pay check to pay check. I would like to have my discharge upgraded to Honorable so that I may be eligible to claim my VA status, and hopefully be able to re-enlist into the reserves.

Respectfully Submitted

P__ R__ W_ (Applicant)
[Applicant's social security number deleted](E2 USN)”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Applicant’s ltr dtd 050105
Applicant’s ltr to VA dtd 020312
70 pages from Applicant’s medical record
Reference from Thomas Edison State College dtd 050201 (2 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive:        None
         Active:          None

 Period of Service Under Review :
Date of Enlistment: 940419               Date of Discharge: 950927

 Length of Service (years, months, days):

         Active: 01 05 08
         Inactive: 00 00 01

 Age at Entry: 28                          Years Contracted: 8

Education Level: 12                        AFQT: 34

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.41 (3)             Behavior: 2.93 (3)                OTA: 3.40

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 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 3630620.

 Chronological Listing of Significant Service Events :

940420:  Applicant to active duty

940929:  Applicant requests reassignment for humanitarian reasons.

941018:  Commanding Officer recommends reassignment for humanitarian reasons.

941115:  Reassignment approved.

950426:  NAVDRUGLAB, JACKSONVILLE FL, reported Applicant’s urine sample, received 950419, tested positive for [cocaine].

950515:  NJP for violation of UCMJ, Article 112a.
         Award: RIR, forf ½ pay for two months.

950516:  Drug and Alcohol Abuse Report: Random urinalysis tests positive for cocaine use. Applicant denied use. Applicant determined not dependant by physician and recommended for Level I. Recommend separation not via VA Hospital.
950615:  Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse with the least favorable characterization of service as under other than honorable conditions.

950630:  Applicant’s urinalysis tests positive for cocaine, second occurrence [extracted from CO’s ltr of 950803].
Undated:         Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
950718:  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.

950719:  Applicant’s counsel submits letter of deficiency.

950803:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

950915:  BUPERS 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 19950927 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. The Applicant contends that her problems in the Navy can be attributed to her personal problems at home and work. While she may feel that her personal problems were the underlying cause of her misconduct, the record clearly reflects her willful misconduct and demonstrated she was unfit for further service. 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 did not show that the Applicant was either not responsible for her conduct or that she should not be held accountable for her actions. Relief denied.

The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided sufficient documentation for the Board to consider. Relief denied.

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. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge. Representation at a personal appearance hearing is recommended but not required.


Pertinent Regulation/Law (at time of discharge)

A. Navy Military Personnel Manual, (NAVPERS 15560C), Change 9/94, effective
22 Jul 94 until 02 Oct 96, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO DRUG ABUSE

B. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “ http://Boards.law.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:

                  Secretary of the Navy Council of Review Boards
                   Attn: Naval Discharge Review Board
                   720 Kennon Street SE Rm 309
                  Washington Navy Yard DC 20374-5023


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