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NAVY | DRB | 2004_Navy | ND04-00397
Original file (ND04-00397.rtf) Auto-classification: Denied


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


ex-AR, USN
Docket No. ND04-00397

Applicant’s Request
The application for discharge review was received on 20040107. The Applicant requests the characterization of service received at the time of discharge be changed to general (under honorable conditions) and the reason for the discharge be changed to “medical condition.” The Applicant requests a personal appearance discharge review before a traveling panel closest to Washington. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) does not travel; all hearings are held in the Washington, D.C. area. The NDRB also advised that the board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 200409010 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 and reason for discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION


Issues, as stated
 Applicant’s issues, as stated on the application:
1. “I told the Navy recruiter of my existing mental illnesses before enlisting, including, the fact that I was receiving SSI benefits and had been since 1992. He said, “People with mental illnesses do fine in the Navy.”
 2. I reported to MM1 F_, my LPO in Basic Training, that I was experiencing manic depression, panic, anxiety, suicidal feelings, and hearing voices, and requested to be relieved of duty and discharged. He told me, “A lot of people with mental conditions make it in the Navy, so suck it up.”
3. Once aboard the USS Carl Vinson my untreated conditions got worse. I wanted to talk to my Commanding Officer about what was happening, but I did not believe I could be discharged for being mentally ill from what the recruiter and MM1 F_ had said to me.
4. Desperate to be discharged, I smoked marijuana when it was announced to my Division that random UA testing was coming up.
5. On my 35 th day of restriction after testing positive for marijuana, my conditions exacerbated and symptoms severe, I was taken by MP’s to see a psychiatrist after threatening to jump off the flight deck. I was released from active duty two (2) days later with an Other Than Honorable discharge, having served 37 days of an ordered 45 day restriction.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Psychological evaluation by Eisner Psychological Associates, INC, dated June 3, 1997 (5 Pages)
 Applicant’ s DD Form 214 (Member 4)
 Medications Applicant was on during 1999

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     010921 - 010925  COG
         Active: USN                        None
Period of Service Under Review :
Date of Enlistment: 010926               Date of Discharge: 020712
Length of Service (years, months, days):

          Active: 00 09 17
          Inactive: None

 Age at Entry: 27                          Years Contracted: 4

Education Level: GED              AFQT: 34

 Highest Rate: AR
Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF*                 Behavior: NMF             OTA: NMF
Military Decorations: None

 Unit/Campaign/Service Awards: None
Days of Unauthorized Absence: None

 *No marks found in Applicant’s service record
Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly 3630620.
Chronological Listing of Significant Service Events :

020416:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 020410, tested positive for THC.
020430:  NJP for violation of UCMJ, Article 112a: On active duty, Applicant wrongfully used marijuana on or about 020403 near Bremerton, Washington.
         Award: Forfeiture of $577.00 per month for 2 months, restriction for 60 days. No indication of appeal in the record.
020430:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
020430:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
020514:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse. Commanding Officer’s comments: On 020403, AR V_ (Applicant) tested positive for Marijuana. He admitted that he smoked a marijuana cigarette. At Captain’s Mast, AR V_ (Applicant) pled guilty to wrongful use of a controlled substance. Based on the urinalysis results and AR V_ (Applicant’s) own statements, it is clear that AR V_ (Applicant) violated the Navy’s Zero Tolerance Policy and has no potential for future naval service. I strongly recommend separating AR V_ (Applicant) for misconduct due to drug abuse and characterizing his service as other than honorable.
020614:  COMCARGRU THREE authorized the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20020712 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).
Issues 1-5: The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for illegal drug use, thus substantiating the misconduct for which he was separated. The summary of service clearly documents that misconduct due to drug abuse was the reason the Applicant was discharged. No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. While he may feel that his medical problems were contributing factors, they do not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating he was unsuitable for further service. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable. Relief denied.

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 the service. However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, to the extent that such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. E vidence of continuing educational pursuits, a positive employment record, a drug free lifestyle, and certification of community service and non-involvement with civil authorities are examples of verifiable proof that can be submitted. The Board determined that the documentation submitted by the Applicant does not mitigate his misconduct while on active duty. Relief denied.

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 . The Naval Military Personnel Manual, (NAVPERS 15560C), Change 33, effective 16 Jul 2001 until 21 Aug 2002, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - 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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