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NAVY | DRB | 2005_Navy | ND0500213
Original file (ND0500213.rtf) Auto-classification: Denied


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

ex-MSSN, USN
Docket No. ND05-00213

Applicant’s Request
The application for discharge review was received on 20041117. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing discharge review before the Board in the Washington, D.C. Metropolitan area. The Applicant did not list any representative on the DD Form 293. Subsequent to the application, the Applicant requested representation by the Disabled American Veterans. At the time of the hearing the Applicant declined to be represented by the Disabled American Veterans.

Decision

A personal appearance hearing discharge review was conducted in Washington, D.C. on 20051104. 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 – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues as submitted at the time of the hearing, which supersede all prior issues submitted on the DD-293 application:

“Applicant contends discharge is inequitable since Bi Polar condition diagnosed post service contributes to his misconduct.”

“Applicant claims post service accomplishments should mitigate character of discharge.”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Bipolar brochure

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     881025 - 890111  COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 890112               Date of Discharge: 920504

 Length of Service (years, months, days):

         Active: 03 03 23
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

Education Level: 13                        AFQT: 29/32

 Highest Rate: MS3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.70 (2)             Behavior: 3.70 (2)                OTA: 3.60

 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 – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

 Chronological Listing of Significant Service Events :

881018:  Applicant signed the Drug and Alcohol Abuse Statement of Understanding.
890113:  Applicant briefed on Navy’s policy of drug and alcohol abuse.

890701:  Applicant signed USN Drug Abuse Statement of Understanding.
900615:  Applicant attended Navy Alcohol and Drug Safety Action Program at the
                  Philadelphia Naval Station.

910515:  Applicant referred by CAAC Naval Station Philadelphia, PA, to Naval Alcohol Rehabilitation Center, Naval Station Norfolk, VA. Applicant had been diagnosed alcohol dependent by a medical officer and referred to ARC Norfolk, VA for rehabilitation. On admission to ARC Norfolk, the Applicant was screened by a staff psychologist and was determined not to be appropriate for Level III treatment.
 Diagnosis:
                   Axis I: 305.00 Alcohol Abuse
 Axis II: 301.60 Dependent Personality Disorder with Narcissistic Immature features.
                   Recommendations:
1.       Return to Command, fit for full duty.
2.       Refer to Level II treatment.
3.       DAPA to initiate AA involvement, antabuse therapy prior to and during Level II.
4.       Patient should be held accountable for actions.
5.       Patient has been instructed that should he need assistance following Level II treatment, he should seek consult.
Patient terminated from treatment due to inadvertent misreferral. Patient is earnest in seeking help, and thought himself to be alcoholic. He has abused alcohol over last year but suffers from immaturity.
Signed by L_ D. W_, Senior Counselor and LCDR S_ S_, MC, USN Clinical Director.

910522:  Commanding Officer, Naval Alcohol Rehabilitation Center, Norfolk, VA, returned Applicant to command as a misreferral as there was insufficient criteria to be diagnosed as alcohol dependent and he is therefore recommended for Level II treatment for alcohol abuse.

910711:  NAVDRUGLAB, Norfolk, VA, reported Applicant’s urine sample, received 910624, tested positive for cocaine.

910801:  NJP for violation of UCMJ, Article 112a: Wrongful use of cocaine on or about 910619.
Award: Forfeiture of $492. 00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-3. No indication of appeal in the record.
910806:  Drug and Alcohol Screening by USS CONSTELLATION (CV 64) DAPA. Applicant found to be dependent on drugs (cocaine).

910806:  Drug and Alcohol Screening by USS CONSTELLATION (CV 64) Senior Medical Officer. Applicant found to be dependent on cocaine.

910806:  Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse and that the characterization of service may be under other than honorable conditions.

910816:  Applicant received Dishonored Check Notification from the Navy Exchange Philadelphia; six checks, totaling $558.00, returned due to non-sufficient funds.

910817:  Applicant charged with public intoxication and disorderly conduct by the Birmingham Municipal Court.

910828:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board. Applicant objected to the separation.
910913:  An Administrative Discharge Board, based upon 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.

911024:  Commanding Officer, USS CONSTELLATION (CV 64), recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

911114:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

911220:  NJP for violation of UCMJ, Article 86: Unauthorized absence from 0630-1030, 911220.
Award: Restriction for 3 days. No indication of appeal in the record.
920504:  Applicant request 30-day in-patient treatment at a Veterans Administration
                  (VA) hospital prior to his administrative separation.

031010:  NDRB documentary record review Docket Number ND03-00247 conducted. Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19920504 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).

 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. At the time that the Applicant was notified that he was being recommended for administrative separation, he had been the subject of a nonjudicial punishment proceedings for violation of Article 112a (wrongful use of controlled substances) of the UCMJ. Subsequent to the discharge notification, the Applicant received a Dishonored Check Notification (6 checks for $558.00), was charged with public intoxication and disorderly conduct by civil authorities, and was the subject of another nonjudicial punishment for violation of Article 86 (UA) of the UCMJ . Medical officers diagnosed the Applicant as an alcohol abuser and dependent on cocaine, and 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 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. Relief is not warranted.
The Applicant contends that his discharge is inequitable since a bipolar condition diagnosed post service contributed to his misconduct. While on active duty the Applicant was diagnosed with a dependent personality disorder with narcissistic immature features. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that a bipolar condition contributed to his misconduct. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. T he 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. Relief denied.





The Applicant claims that his post service accomplishments should mitigate the character of his 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 the service. 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. The Applicant provided an information brochure on Bipolar disorders as documentation of his post service conduct. The Applicant’s statements concerning his employment, sobriety, and family life, without supporting documentation, were found not to mitigate the offense for which he was discharged. Relief denied.

The following is provided for the edification of the Applicant. The Applicant has exhausted his opportunities for review by the NDRB. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.
Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 04 Mar 93, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO 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 502, Propriety .

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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