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NAVY | DRB | 2005_Navy | ND0500083
Original file (ND0500083.rtf) Auto-classification: Denied


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

ex-HA, USN
Docket No. ND05-00083

Applicant’s Request
The application for discharge review was received on 20041013. 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 20050224. 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 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

1. “A DISCHARGE UPGRADE IS DUE IN FACT THAT I WAS HAVING MAJOR PROBLEMS WITH SEXUAL HARASSMENT AND ABUSE BY MY EX-BOY FRIEND ON ACTIVE DUTY. HE WAS CHARGED WITH ASSAULT AND STALKING ME IN SERVICE, AT THE TIME I JUST WANTED OUT OF THE MILITARY BECAUSE MY CHAIN OF COMMAND WAS NOT CONCERN WITH THE EFFECTS OF SEXUAL HARASSMENT AND DID NOT EFFICTIVELY DEAL WITH THE EFFECTS OF SEXUAL HARASSMENT, PHYSICAL ABUSE, PAIN AND MENTAL ANGUISH IN A TIMELY MANNER. I WILL NEED LONG TERM HEALTH CARE FOR THE VA DUE TO THE ABUSE SUFFER IN SERVICE AND I STILL HAVE UNRESOLVED ISSUES TODAY.

I FEEL THIS DISCHARGE SHOULD BE UPGRADED DUE IN FACT THAT I WAS UNDER SO MUCH STRESS AND PAIN ON ACTIVE DUTY THAT I LOST CONTROL OF MY LIFE DUE IN PART TO THE PRESISTENCE FEAR AND DEPRESSION WITH A LACK OF CONCERN FROM MY CHAIN OF COMMAND. I WANTED OUT OF THE U.S. NAVY SO BAD I WROTE MY CONGRESSION REPRESENTATIVE, AND THEY LET ME OUT OF SERVICE DUE TO THE HARASSMENT, MENTAL AND PHYSICAL ABUSE, ENDURE WILL ON ACTIVE DUTY. HAVING ON INPUT ON THE DISCHARGE STATUS. WHICH RESULTED IN A DISCHARGE OF A UNDER OTHER THAN HONARABLE CONDITIONS.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from A_ L_ (Applicant), dated November 8, 2004
Copy of DD Form 214 (Member 4)
Copy of DD Form 214 (Member 1)
Authorization and Consent to release information to the Department of Veterans Affairs (VA), undated (2 pages)
Montgomery GI Bill Act of 1984, DD Form 2366, signed on March 29, 1995
Applicant’s Leave and Earnings statement, pay coverage for January 03, 1997
Letter from NCPB returning DD form 293 for completion of certain items, dated September 30, 1997 (3 pages)
Copy of DD Form 214 (Member 1) (Duplicate)
Health Care Records, DD for 2005
Abstract of Service and Medical History, NAVMED 61550/4
Letter of reference from J_ M. W_, Ph.D., Senior Pastor, dated November 11, 2004
Letter of reference from M_ W_ , Dean/Instructor, Sonship Bible College, dated November 18, 2004
Letter of reference from L_ P_, Youth Ministry Coordinator, dated November 21, 2004
Letter of Appreciation from Professional Nursing Service, Inc., A_ T_, Chief of Nursing, dated October 5, 2004
Request for information and documentation from A_ L_ J_ (Applicant), undated
Chronological Events Leading to Applicant’s discharge, dated September 16, 1997 (7 pages)
Letter from D_ L_ K_, Head, Records Section, dated November 5, 1997
Letter from R_ C_ B_, United States Senate, dated October 1, 1996
Letter to R_ C_ B_, United States Senate, dated October 9, 1996 (2 pages)
Letter from R_ C_ B_, United States Senate, dated October 16, 1996
Letter to R_ C_ B_, United States Senate, dated October 22, 1996 (5 pages)
Letter from R_ L_, Naval Hospital to R_ C_ B_, United States Senate, dated October 22, 1996
Letter from C_ W_, Special Assistant, Congressional Liaison Office, to Senator B_, dated September 25, 1996
Letter from R_ C_ B_, United States Senate, to A_ F_ L_ (Applicant), dated September 12, 1996
Medical Request/Authorization form, date requested on April 10, 1996
Letter from J_ A_ B_, MA, Victim Services, undated
Letter from B_ C_ Z_, Lieutenant, Judge Advocate General’s Corps, U.S. Navy, Trial Counsel, dated September 05, 1996 (3 pages)
Evaluation Report & Counseling Record for the period of January 16, 1996 to July 15, 1996 (2 pages)
Administrative Discharge Board Witness Questionnaires (14 pages)
Letter of reference from J_ M_, Independence High School, dated September 2, 1997
Letter of reference form A_ M_ A_, Independence High School, dated September 2, 1997
Letter of reference from L_ N_ H_, Science Teacher, Independence High School, dated September 3, 1997
Letter of reference from L_ K_ D_, Science Teacher, Independence High School, dated September 3, 1997
Letter of reference from W_ P_, Independence High School, dated August 30, 1997
Letter of reference from a Teacher from Independence High School, dated August 29, 1997
Chronological Record of Medical Care, dated January 01, 1996 (3 pages)
Report of Medical Examination, dated December 13, 1993
Report of Medical History, dated December 13, 1993 (2 pages)
Report of Medical Examination, December 17, 1996 (2 pages)
Chronological Record of Medical Care, dated January 3, 1996 (5 pages)
Medical Record Consultation from Dr. C_, Mental Health Clinic, dated August 23, 1996 (5 pages)
Report of Medical Assessment, date signed December 26, 1996 (2 pages)
Report of Medical History, date examination December 17, 1996 (2 pages)
HIV testing results from ViroMed Laboratories, Inc, dated December 12, 1996
Chronological Record of Medical Care, dated July 12, 1996
Medical Record Consultation from Dr. C_, Mental Health Clinic, dated August 23, 1996 (3 pages) (Duplicate)
Alcohol and Drug Evaluation Interview, dated September 24, 1996 (2 pages)
Criminal/Infraction Record Check from 1982 to Present, dated September 30, 2003

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USAF (DEP)     931213 - 940615  ELS (Weight Standards)
 Inactive: USNR (DEP)     941004 - 950312  COG
          Active: None

 Period of Service Under Review :
Date of Enlistment: 950313               Date of Discharge: 970103

 Length of Service (years, months, days):

         Active: 01 09 21
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4 (12 months extension)

 Education Level: 12                        AFQT: 58

 Highest Rate: HA

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (2)             Behavior: 4.00 (2)                OTA: 3.58

 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 1910-146, formerly 3630620.

 Chronological Listing of Significant Service Events :

960807:  NAVDRUGLAB, Great Lakes, IL, reported Applicant’s urine sample, received 960729, tested positive for THC.

960808:  Applicant provided sworn statement denying illegal drug use.
960823:  Mental Health Clinic: 20 y/o USN woman with 1.5 years of service who was transferred from BMC 1017 to BMC as resolution to a complaint of stalking and physical abuse by her ex- boyfriend over the past year.
         Physical Problem: HA A_ L_ (Applicant) was self-referred to the Mental Health Clinic in response to feeling overwhelming emotions from her chronic interpersonal and military stressors. Upon interviewing she reported experiencing depression with suicidal thoughts, poor concentration, hopelessness, frustration, loneliness, lower GI problems, decreased appetite, poor sleep, and fear in response to her continuing problems with her ex-boyfriend from who she has two restraining orders (civilian and military). She indicated that she fears her life because he has threatened to kill if she ever left him. Her fear has increased since she has a long walk to her new BMC from her barracks and he may be looking to retaliate since he has a court martial pending on this case. She is very angry at her command who she thinks had been unconcerned about her predicament until she sought congressional intervention.
         Diagnostic Impression:
         AXIS I: Adjusted disorder with depressed mood, chronic-309.0
         AXIS II: No Dx-V71.09
         AXIS III: abdominal and bowel problems
         AXIS IV: occupational and relational problems
         AXIS V: Current Global Assessment of Functioning=50
         Recommendations: Return to full duty due to the absence of a disqualifying AXIS I condition. Patient will be followed in Mental Health for brief psychotherapy to address the presenting problem beginning August 28, 1996.

960826:  Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse as evidenced by a positive urinalysis for marijuana. Applicant notified least favorable characterization of service as under other than honorable conditions.
960829:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27(b), elected to appear before an Administrative Discharge Board.

960924:  Alcohol and Drug Evaluation Interview: No evidence of abuse or dependency found.

960925:  Drug and Alcohol Abuse Report: During a random drug test, the Applicant tested positive for abuse of marijuana on or about 960729.
         Physician (M.D.) found Applicant not dependent and not eligible for counseling and rehabilitation.
         Recommendation: Separate from Service not VIA VA Hospital.
         Commanding Officer’s action was to process Applicant for separation from the military.
         Disciplinary action taken: No action taken
         Comments: No potential for continued service due to drug use.
961017:  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.

961125:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by a positive urinalysis for marijuana. Commanding Officer’s comments (verbatim): HA L_’s (Applicant) wrongful use of marijuana is not consistent with the standards of this command or of the United States Navy. Retention of HA L_ (Applicant) would be detrimental to good order and discipline and to the operation of this command. I recommend that HA L_ (Applicant) be separated from the United States Navy with an Other Than Honorable discharge.

970103:  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 19970103 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).

Issue 1: 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. 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 does not demonstrate that the Applicant was not responsible for her conduct or that she should not be held accountable for her actions. Relief denied.

The Applicant contends that her discharge should be upgraded because her misconduct was the result of harassment she received while in the Naval service. The record contains credible evidence that the Applicant was the victim of harassment and assaults at the hands of another sailor. The record also contains evidence that the harassment was of such a nature, that the Navy issued a military protective order for the Applicant’s benefit and eventually referred the case to a special court-martial for disposition. Given the circumstances, t he Board recognizes that the Applicant’s time serving in the U.S. Navy was challenging because of another sailor’s misconduct. However, it must also be recognized that the Applicant’s status as a victim does not justify her own violation of the UCMJ. Many members of the Navy encounter similar hardships during their active duty service. The vast majority of these sailors are still able to serve honorably, despite these hardships, and therefore earn their honorable discharges. In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. The Board found that the Applicant's service was equitably characterized. Relief denied.

The Veterans Administration determines eligibility for post-service benefits not the Naval 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.

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, and credible evidence of a substance free lifestyle. 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 her 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 18, effective 12 Dec 97 to 19 May 99, 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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