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


FOR OFFICIAL USE ONLY


ex-CTRSN, USN
Docket No. ND05-00779

Applicant’s Request

The application for discharge review was received on 20050404. The Applicant requests his characterization of service received at the time of discharge changed to honorable. The Applicant requests a documentary record discharge review. The Applicant designated the Disabled American Veterans as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050831. 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 characterization of the discharge and reason for discharge shall not change. The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to drug abuse.

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PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application and attached document/letter:

“Dear Discharge Review Board:

The Following issues are the reasons I believe my 12-14-94 discharges should be upgraded to honorable medically administrative . If you disagree, please explain in detail why you disagree . The presumption of regularity that might normally permit you to assume that the service acted correctly in characterizing my service as I was that honorable does not apply to my case because of the evidence I am submitting . Clemency is warranted because it is an injustice for me to continue to suffer the adverse consequences of a bad discharge . Under current standards, I would not receive the type of discharge I did.

My average conduct and efficiency ratings/behavior and proficiency marks were above average . I received awards and decorations . I received letters of recommendation . I had combat service . My record of promotions show I was generally a proficient and good service member . I had a prior honorable discharge dated 03-13-92 . I have been a good citizen since discharge . My record of NJPs/Article 15s indicates only isolated or minor offenses.

My record of court-martial convictions indicates only isolated or mi9nor offenses . My record of UA indicates only minor or isolated offenses . My ability to serve was impaired because of marital and medical problems . Personal problems impaired my ability to serve . Phychiatric problems I had impaired my ability to serve . MY lack of recognition of my mental impairment crippled my ability to serve . MY discharge was based on many offenses, but they wore mostly medically treatable offenses.

My command abused its authority when it decided to give me a bad discharge . Your support in the correction of my official record to Medically Administrative Discharge would be a great help in my recovery from a very trying time in my life which I had very little control over . I am respectfully requesting your assistance with the assurance of a timely completion to the claims processing.

Thank You for your immediate attention to this request.

Respectfully,
[signed]
A_ S_ (Applicant) Senior”

Additional issues submitted by Applicant’s representative (Disabled American Veterans):

“Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and of all evidence assembled for review, we continue to note the contention of the appellant in his request for a discharge upgrade of his current Under Other Than Honorable discharge to that of Honorable.

The FSM served on active service from March 14, 1988 to December 14, 1994 at which time he was discharged due to Misconduct.

The FSM contends the current discharge is improper because the offenses incurred were caused and / or created by his medical condition and the lack of treatment. He submits verification of a Schizoaffective Disorder, established by the Department of Veterans Affairs as service incurred. A disorder such as this could be a substantial cause or influence to the FSM’s ability to reason and maintain sound judgment. Especially when absent from a structure and protected environment in effect during the normal duty hours, as reflected by the above average ratings, citations and letters of recommendation presented to the FSM.

This creates a need for a review of the application of the standard, for the Board to determine that the Applicant’s discharge was improper. The Board will determine which reason for discharge should have been assigned based upon the facts and circumstances before the Board, including the service regulations governing the reasons for discharge at that time, to determine whether relief is warranted. See, SECNAVIST 5420.174 D, Sect. 407, part 3.

As the representative, we ask that consideration be given to equitable relief, as this is a matter that involves a determination whether a discharge should be changed under the equity standards, to include any issue upon which the Applicant submits to the Board’s discretionary authority, under SECNAVIST 5420.174D.

Additionally, the FSM is applying for consideration and review of his records through the Navy’s Disability Evaluation System with the submittal of his DD 149 application. Therefore after a decision on the FSM’s application for upgrade to an Honorable discharge is made, we ask the case be forwarded to the Navy Board for Correction of Military Records for consideration of this application.

We ask for the Board’s careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision. These issues do not supersede any issues previously submitted by the Applicant. ”





Documentation

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

Standard Form 180, dtd August 20, 2004
Letter from Staff psychiatrist, Maryland Health Care System, dtd October 3, 2003
Disabled American Veterans memorandum, dtd February 22, 2005
DD Form 149, dtd March 23, 2005
Rating decision, dtd March 10, 2005
Applicant’s DD Form 214

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PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

         Inactive: USNR (DEP)     19980226 - 19880313                        COG
         Active: USN                        19880314 - 19910911                        HON

Period of Service Under Review :

Date of Enlistment: 19910912             Date of Discharge: 19941214

Length of Service (years, months, days):

         Active: 03 03 03         (Does not exclude lost time.)    (Total service: 06 06 16)
         Inactive: None

Time Lost During This Period (days):

         Unauthorized absence: 12 days
         Confinement:              60 days

Age at Entry: 23

Years Contracted: 6

Education Level: GED                       AFQT: 51

Highest Rate: CTR2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: 3.5 (3)                       Behavior: 3.5 (3)                 OTA: 3 .7 (3)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): First Good Conduct Award for the period ending 13Mar92, Arctic Service Ribbon, Armed Forces Expeditionary Medal

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Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/ MISCONDUCT, authority: MILPERSMAN, Article 3630620 .

Chronological Listing of Significant Service Events :

910912:  Reenlisted this date for a term of 6 years.

931014:  Applicant to unauthorized absence at 0730 on 931014.

931014:  Report of Declaration of Deserter. Applicant declared a deserter on 931014 having been an unauthorized absentee since 0730, 931014 from Naval Security Group, Fort Meade.

931026:  Applicant from unauthorized absence at 0757 on 931026 (12 days/surrendered).

940413:  Special Court Martial: [Trial Dates: 3 Mar, 4 Mar, 12 Apr and 13 Apr 1994]
         Charge: violation of the UCMJ, Article 112a (2 specs):
         Specification 1 and 2: Wrongfully used cocaine on or about 20 Aug 1993 and again on or about 25 Jan 1994.
         Findings: to Charge and specifications 1 and 2, guilty.
         Sentence: Confinement for 60 days, forfeiture of $250 per month for 3 months, reduction to E-3, reprimanded. [Partial sentence extracted from Commanding Officer’s letter dated 941122.]
         CA 940927: Sentence approved and ordered executed.

940414:  Applicant to confinement at MCB Brig, Quantico, VA.

940811:  NJP for violation of UCMJ, Article 86 (unauthorized absence).
         Specification: 0930, 1 Aug 1994, failed to go to his appointed place of duty.
Violation of UCMJ, Article 92 (failure to obey order) (3 specs):
Specification 1 and 2: Twice, 25 July 1994, failed to obey a lawful order.
Specification 3: 26 Jul 1994, failed to obey a lawful order.
         Award: Forfeiture of one half months pay for 2 months, reduction to E-4. Forfeiture suspended for 6 months. No indication of appeal in the record.

940929:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to commission of a serious offense.

940929:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

941122:  Commanding Officer, Naval Station Anacostia, recommended discharge with a general (under honorable conditions) by reason of misconduct due to drug abuse and misconduct due to commission of a serious offense as evidenced by violations of the UCMJ in his current enlistment. Commanding Officer’s comments: “Seaman S_ (Applicant) is a drug abuser who has no potential for future military service. At his previous command, he was randomly selected to provide a urinalysis specimen on two separate occasions, both tested positive for cocaine. Consequently, Seaman S_ (Applicant) reported to Naval Station Anacostia for administrative separation after serving a 60 day confinement sentence for use of cocaine and he was placed on the Surveillance Urinalysis program,. While assigned to the Surveillance Urinalysis program, of the 13 samples submitted 6 tested positive for cocaine.
Seaman S_ (Applicant), however, is an above average worker whose performance has been noteworthy during his most recent TEMDU assignment. In addition, he has cooperated fully with and assisted Naval Criminal Investigative Service (NCIS) Agents in identifying and collecting evidence against drug abusers serving locally in the Navy and other services. NCIS agents anticipate arrests and possible convictions in the near future for the cases with which Seaman S_ (Applicant) has assisted. Seaman S_ (Applicant)’s recent contributions to these efforts should be considered when determining the characterization of his separation. Finally, Seaman S_ (Applicant) completed the Veteran’s Administration Level III Drug Rehabilitation program on 8 November 1994. In view of these mitigating circumstances, I recommend discharge with a General characterization.”

941213:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse use.

Service Record was missing elements of the Summary of Service.

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PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19941214 by reason of misconduct due to drug abuse (A) with a service characterization of under other than honorable conditions. After a thorough review of all available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).

Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. After a thorough review of Applicant’s case the Board discovered no impropriety or inequity. 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 outweigh the positive aspects of the member's military record. The Applicant’s service was marred by a special court-martial for two violations of UCMJ Article 112a (wrongful use of a controlled substance), nonjudicial punishment (NJP) for a violation of UCMJ Article 86 (failure to report to appointed place of duty) and three violations of UCMJ Article 92 (failure to obey an order), furthermore the record contains credible evidence of six unadjudicated violations of UCMJ Article 112a following the court martial. The violations of UCMJ Article 112a substantiate the misconduct for which he was separated. 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 the characterization of his service. Relief is not warranted.

The Applicant requested that the reason for his discharge be changed to “medical administrative.” The NDRB does not have the authority to change a narrative reason for separation to one for a medical separation as requested. Only the Board for Correction of Naval Records can grant this type of narrative reason change. The Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning relief in this matter. The NDRB, under its responsibility to examine the propriety and equity of a discharge, will change the reason for discharge if such a change is warranted. The service record clearly documents the misconduct due to drug abuse, which resulted in the Applicant’s discharge. No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. To change the Narrative Reason for Separation would be inappropriate.

When reviewing a discharge, the NDRB does consider the extent to which a medical problem might affect an Applicant’s performance and ability to conform to the military’s standards of conduct and discipline. The NDRB does not consider the Applicant’s stated condition, the alleged lack of medical treatment, diagnosis or misdiagnosis to be of sufficient nature to exculpate the Applicant’s misconduct. In fact, the NDRB sees no connection between the Applicant’s misconduct and his medical condition. The documentation and statements provided by the Applicant and the Disabled American Veterans in conjunction with a post service medical diagnosis of schizophrenia does not justify the misconduct and serious offenses committed by the Applicant prior to his discharge. There is credible evidence in the record that the Applicant used illegal drugs. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Processing for separation is mandatory for all sailors who abuse illegal drugs. Separation under these conditions generally results in the characterization of service of under other than honorable conditions. Relief not warranted.

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 educational or employment opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. The Applicant’s issue is without merit. 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 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 certification of non-involvement with civil authorities. As of this time, the Applicant has not provided sufficient documentation for the Board to consider.

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 . Navy Military Personnel Manual, (NAVPERS 15560C), Change 9/94, effective
22 Jul 94 until 02 Oct 96, 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 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 .

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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