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NAVY | DRB | 2004_Navy | ND04-01325
Original file (ND04-01325.rtf) Auto-classification: Denied


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

ex-SN, USN
Docket No. ND04-01325

Applicant’s Request
The application for discharge review was received on 20040825. The Applicant requests the characterization of service received at the time of discharge be changed to general (under honorable conditions). The Applicant requests a documentary record review. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary 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 considered 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 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 may have been experiencing symptoms of my newly diagnosed schizoaffective disorder, bipolar, manic while on active duty which caused my irrational behavior.

2) I may have self medicated myself while under the influence of marijuana due to symptoms of my newly diagnosed schizoaffective disorder, bipolar, manic.
3) Superiors did not sympathize because my wife was HIV positive and I was frequently tested and in constant fear of contracting disease myself. I do not feel I received adequate education and mental health support.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Department of Veterans Affairs, Statement in Support of Claim
Statement of Applicant
Applicant’s Authorization and Consent Form to Department of Veteran’s Affairs
Final Medical Report, Broughton Hospital (6 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     990528 - 990624  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 990625               Date of Discharge: 010414

 Length of Service (years, months, days):

         Active: 01 09 18
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

 Education Level: 12                        AFQT: 40

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (1)    Behavior: 3.00 (1)                OTA: 2.67

 Military Decorations: None

 Unit/Campaign/Service Awards: AFEM, SSDR

 Days of Unauthorized Absence: 4

 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 :

000324:  NJP for violation of UCMJ, Article 86: Unauthorized absence.
Award: Restriction and extra duty for 30 days. No indication of appeal in the record.

 000916:  Retention Warning: Advised of deficiency (Violation of UCMJ Article 86, Unauthorized Absence.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.
010215:  NJP for violation of UCMJ, Article 112a: Wrongful use, possession, etc., of controlled substances.
         Award: Forfeiture of $584.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2 (reduction and forfeitures suspended six months). No indication of appeal in the record.
010414:  Applicant discharged under other than honorable conditions by reason of misconduct due to drug abuse.

Complete discharge package unavailable

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20010414 under other than honorable conditions for misconduct due to drug abuse (A). After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C). The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).

Issues 1 and 2: Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question. No such impropriety or inequity is evident during the Applicant’s enlistment. The Applicant contends that his misconduct was the result of undiagnosed psychiatric disorders and his attempts to use illegal drugs to self-medicate them. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue. Despite his contentions, the Applicant has not provided any evidence, nor does the record contain any evidence to suggest that the Applicant was not responsible for his misconduct or should not be held accountable for his actions. 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. T he Applicant’s service was marred by two nonjudicial punishment proceedings for violations of UCMJ Article 86, unauthorized absence, and Article 112a of the UCMJ, wrongful use of a controlled substance. 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. Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service. Relief is not warranted.
Issue 3: The Applicant contends that his superiors did not sympathize with his wife’s HIV status and that he did not receive adequate education and mental support. There is no evidence in the record, nor did the Applicant provide any evidence to suggest his chain of command acted inappropriately with respect to any of the Applicant’s personal problems. However, even if the Applicant could show that his chain of command failed to provide him adequate support for his personal problems, such failure on the part of the chain of command would neither amount to a justification nor to a defense for the Applicant’s own misconduct. 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 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 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 31, dated 20 Feb 01, effective 12 Feb 2001 until 15 Jul 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 V, Para 502, Propriety .

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

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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