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NAVY | DRB | 2004_Navy | ND04-00177
Original file (ND04-00177.rtf) Auto-classification: Denied


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


ex-BM3, USN
Docket No. ND04-00177

Applicant’s Request
The application for discharge review was received on 20031107. 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 as the representative on the DD Form 293. Subsequent to the application, the applicant obtained representation by Disabled American Veterans.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040720. 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: GENERAL (UNDER 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. “As of this date Oct 21, 2003 I am a 100% Service Connected Veteran. I respectfully request that my discharge is upgraded due to the evidence provided. It is difficult to receive employment that you know and are qualified for. I believe in this system and I’m all all American and I’m still a volunteer and been a member of the American Legion since 2001. Good behavior statues are in effect March 04.”
Additional issues submitted by Applicant’s counsel/representative (DISABLED AMERICAN VETERANS):
 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 General Under Honorable Conditions to that of Honorable.The FSM served on active service from June 20, 1990 to February 21, 1995 at which time he was discharged due to misconduct. The FSM contends the current discharge is improper because he was suffering the effects of a psychiatric condition. As evidence he submits a decision from the Department of Veterans Affairs dated November 16, 2001 noting the service incurrence of a Schizo-Affective Disorder rated as totally disabling. The military service record verifies the FSM was sent to psychological screening by the Command, who were concerned over the responses given for a positive drug test. Also there are suspicious statements noted that occurred on December 9, 1994; January 11, 1995 that reflected a general paranoid behavior. 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’s case based on the finding of psychiatric involvement for his inappropriate behavior could have been referred for an Honorable discharge based on the prior good service as there was an inter-current cause to the misconduct.We maintain that such symptoms would affect the FSM’s judgment, leading him to make poor decisions, such as drug usage as a way of self medicating to attempt resolution of his paranoia. 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:
Copy of Rating Decision from Department of Veteran Affairs (12pages)
Letter from Applicant dated November 4, 2003
 Copies of Service/Medical Related Documents (365 pages)
 Letter from Common Wealth of Virginia Dept of Mental Health, Mental Retardation and Substance Abuse Services to Honorable J. D. B__, Judge General District Court City of Virginia Beach Judicial Center dated February 7, 1997 (4 pages).
 Court Agreement dated February 27, 1997 (2 pages)
 Letter from Probation Supervisor dated May 27, 1999


PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     891028 - 900619  COG
          Active: USN                        900620 - 940619  HON
Period of Service Under Review :
Date of Enlistment: 940620               Date of Discharge: 950221

 Length of Service (years, months, days):
         Active: 00 08 01
          Inactive: None
Age at Entry: 22                          Years Contracted: 6

 Education Level: 12                        AFQT: 68
Highest Rate: BM3

 Final Enlisted Performance Evaluation Averages (number of marks):
Performance: 2.80 (1)    Behavior: 2.80 (1)                OTA: 3 .80

 Military Decorations: None
Unit/Campaign/Service Awards: GCM, NDSM, Rifle Expert, Pistol Expert, SSDR, SASM

 Days of Unauthorized Absence: None
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630620.
Chronological Listing of Significant Service Events :

891029:  MEPS waivers granted for adjustment disorder secondary to adolescence, resolved and defective auditory acuity, left ear.
900703:  Naval Hospital NTC, Orlando requests mental health records from Forbes Metropolitan Hospital.
940620:  Reenlisted at Coronado, CA Seal Team 3 for 6 years.

 940826:  NAVDRUGLAB, SAN DIEGO, CA, reported Applicant’s urine sample, received 940822, tested positive for [cocaine].
940830:  Applicant refused nonjudicial punishment for alleged violation of the UCMJ Article 112a.
940831:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by reference (b) NAVDRUGLAB SAN DIEGO 262008Z AUG 94.
940831:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
941103:  Applicant submits letter to Administrative Discharge Board [I very respectfully request a General Discharge so that I may be able to function in society without the extreme prejudice that I would unjustly be subjected to with an OTH. I realize that I have embarrassed the NSW community and the Navy as a whole, which I will deeply regret for the rest of my life.]
941104:  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 general (under honorable conditions).

950113:  Patient evaluation. Diagnosis:
         Axis I: r/o delusional disorder
          Axis II: Narcissistic traits

950117:  Commanding Officer recommended discharge general (under honorable conditions) by reason of misconduct due to drug abuse (use).
950124:  Commanding Officer referred Applicant for a mental health evaluation. Brief actual description of the behaviors and/or verbal expressions that caused the determination that a mental health evaluation is necessary: [Statement made to a Sand Diego Police Department Officer that “a lot of bad people are following you… you know they are working together because they all have orange balls on their car antennae.] [Statement made to a FBI Agent on 11 Jan 95 [you are being followed by CIA and DEA agents who are conspiring to harm you because of knowledge you have about their previous operations.]

950126:  Applicant Discharged.
          Condition: Stable
          Disposition: Full Duty, continue treatment as outpatient
          Remarks: Resumption of duty
950203:  BUPERS directed the Applicant's discharge general (under 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 19950221 general under 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. 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 and statements and documents submitted by the Applicant do not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. The Applicant’s service record is marred by a positive urinalysis for cocaine, thus substantiating the misconduct for which he was separated. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable. Relief denied.

The following is provided for the edification of the Applicant. Normally, to permit relief, a procedural error or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no such errors 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, verifiable employment records, 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. 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. Relief denied.

Issue 2. The Applicant was seen by competent medical authority in January 1995 and returned to full duty. After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that his discharge was appropriate and that the contention that “symptoms would affect the Applicant’s judgment… leading him to make poor decisions,” was found not to mitigate the conduct for which he was discharged

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. The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his discharge at that time. 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 5420.174C 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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