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NAVY | DRB | 2004_Navy | ND04-00917
Original file (ND04-00917.rtf) Auto-classification: Denied


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

ex-PNSA, USNR(TAR)
Docket No. ND04-00917

Applicant’s Request
The application for discharge review was received on 20040512. The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to “Convenience of the Government.” The Applicant requests a documentary record discharge review. The Applicant listed the American Legion as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050201. 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. “My medical and physical problems impaired my ability to serve. When aboard ship my medical problems started. First my feet, them my back, for about nine (9) months I received very limited medical treatment and I became very depressed. After nine (9) months I was finally seen by a Navy Doctor and was immediately taken off the ship and put on limited duty ashore. A Petty Officer from the ship also was given shore duty which made him in charge of me again. He and I could not get along. We had random urinalysis, after one my test was positive. After Captain’s Mast I was released from Active Duty with an other than Honorable discharge.
I request I be granted Clemency as it is an injustice for me to continue to suffer the adverse consequences of this bad discharge. I have bad feet, a bad back both due to my military serves and I need help.”

 The American Legion did not provide any issues.

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Character reference, dated April 3, 2004
Character reference, dated April 15, 2004
Cover letter from South Texas Psychiatric Associates, P.R. dated November 12, 2004 along with Applicant’s records (12 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USAR (DEP)     Unknown           COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 981030               Date of Discharge: 000811

 Length of Service (years, months, days):

         Active: 01 09 12
         Inactive: 00 00 06

 Age at Entry: 27                          Years Contracted: 8

 Education Level: 11 GED           AFQT: 79

 Highest Rate: PNSN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF*                 Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: BER, JMUA, NUC

 Days of Unauthorized Absence: None

*No marks found in 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 :

981105:  Applicant to active duty.

 990531:  Medical Record: Follow up unresolved Bilat foot pain. Also complains of unresolved lower back pain.
Plan: Continue meds. Need to set up consult for feet. Return for any problem.
990604:  Medical Record: Complains of unresolved lower back pain. Assessment: Pedin plantis lower. Plan: Pt educated on Rx. Return for any problem.

990710:  Retention Warning: Advised of deficiency (Conflicts with those who exercise authority over you, failure to properly utilize your chain of command to resolve issues, and disobeying the orders of petty officers appointed over you.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

990724:  Medical Record: Assessment: Bilateral pes planus. Plan: Podiatry consult for arch supports. Fit for entire PRT.

990831:  Medical Record: Provisional diagnosis: Bilateral flat feet. Arch supports.

990914:  Medical Record: Applicant found fit for full PRT.

991012:  Medical Record: Complains of knee pain for 2½ months, aching, throbbing pain when climbing ladders.

991027:  Medical Record: Complains of unresolved knee, back, neck pain for 5 months. Had PT yesterday.

 991116:  Medical Record: Follow up: Chronic lower back pain. Assessment/Plan: No improvement. LD for 3 weeks. Continue B/W for 3 weeks for tx as before. Follow up RPT after ortho checks.

991203:  Applicant placed on Binnacle list/limited duty list for 7 days. Specific limitations: No PRT, no fire party, no working party, no sweeping, no lifting greater than 5 pounds, no standing longer than 15 minutes. Diagnosis: Bilateral feet and knee pain; lower back pain; full orthopedic evaluation pending on 991209.

 000330:  NAVHOSP Corpus Christi: Applicant notes lower back pain a little better.

 000525:  NAVDRUGLAB, Great Lakes, IL reported Applicant’s urine sample, received 000518, tested positive for THC.

000616:  NJP for violation of UCMJ, Article 112A: Wrongful use THC on 000515.
         Award: Forfeiture of 585.75 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. Restriction and extra duty suspended. No indication of appeal in the record.
000712:  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.
000712:  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.
000713:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

000731:  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 20000811 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. When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. An Under Other Than Honorable Conditions discharge 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. There is credible evidence that the applicant used drugs. The Applicant’s service was marred by nonjudicial punishment proceedings for violating Article 112a of the UCMJ in addition to a retention warning for conduct. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service. Additionally, 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. Relief is not warranted.

The Applicant contends that his ability to serve in the Navy was impaired by his medical and physical problems. While he may feel that his physical ailments and resulting “depression” were the underlying cause of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service. The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions. Additionally, the Board found no indication from the service record and documentation provided by the Applicant that he was denied proper medical care while on active duty. Relief denied.

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, 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. 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. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

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 . The Naval Military Personnel Manual, (NAVPERS 15560C), Change 27, effective 27 March 2000 - 11 Feb 2001, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - 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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