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NAVY | DRB | 2005_Navy | ND0501056
Original file (ND0501056.rtf) Auto-classification: Denied


DEPARTMENT OF THE NAVY
NAVAL DISCHARGE REVIEW BOARD (NDRB)
 DISCHARGE REVIEW
DECISIONAL DOCUMENT
FOR OFFICIAL USE ONLY

ex-AOAA, USN
Docket No. ND05-01056

Applicant’s Request
The application for discharge review was received on 20050606. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to general (under honorable conditions). The Applicant requests a documentary record discharge review. The Applicant designated Vietnam Veterans of America as the representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20051221. 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 by reason of misconduct due to drug abuse.


 PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

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

“1. Was a good sailor until this incident.

2. Was reliable, receiving above average ratings.

3. Turned to the Navy voluntarily seeking help.

4. NCIS personnel seemed “irate” that I could not do the case for them.

5. Was told that I’d get a general discharge under honorable conditions.

6. I am a good person who made a mistake as a young man. I am sorry for my error in judgement.”

Additional issues submitted by Applicant’s representative (Vietnam Veterans of America) as contained in item 16f, remarks, of DD Form 293:

“Mr. M_ (Applicant) served his nation honorably during the 1991 Gulf War. He clearly made mistakes during his “stateside” duties after the war. He is a hardworking tax-paying citizen, and is a good father and provider. I request he be granted a general discharge under honorable conditions.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from Applicant’s representative, dtd February 1, 2005 (2 pages)
Appointment of veterans service organization as claimant’s representative, dtd March 14, 2004
Applicant’s DD Form 214
37 pages from Applicant’s service/medical records
Letter to Bureau of Naval Personnel from Applicant, dtd July 22, 1992
U. S. Merchant Mariner’s identification card expiring November 7, 2007
Certificate of completion of 48-hour Able Seaman, dtd February 27, 2004
Certificate of completion of 32-hour Proficiency in Survival Craft, dtd February 20, 2004

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19871028 - 19880824      COG
         Active: None

 Period of Service Under Review :
Date of Enlistment: 19880825             Date of Discharge: 19920413

 Length of Service (years, months, days):

         Active: 03 06 18 (excludes lost time)
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence: 31
         Confinement:              None

 Age at Entry: 18

 Years Contracted: 4

 Education Level: 12                                 AFQT: 48

 Highest Rate: AOAN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.8 (5)*                      Behavior: 3.7 (6)*                OTA: 3 .90*

 Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214) : National Defense Service Medal, Kuwait Liberation Medal, Sea Service Deployment Ribbon, Navy Unit Commendation, Joint Meritorious Unit Commendation, Southwest Asia Service Medal (2 Bronze Stars)
*Averages computed, in part, using reports provided by Applicant


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

UNDER OTHER THAN HONORABLE CONDITIONS/ Misconduct - Drug abuse (Use), authority: MILPERSMAN, Article 3630620 .
Chronological Listing of Significant Service Events :

900508:  Director, Navy Family Support Program informed Director, Enlisted Performance Division that the Applicant was determined to be a child sexual offender who committed a serious sexual perversion and that the Applicant was not eligible for enrollment in the Family Advocacy Program due to the Applicant’s denial of the alleged incident. [Date is speculative due to illegibility of document.]

900809:  Commanding Officer recommended Applicant’s retention in the naval service, in concurrence with an administrative board which found that the Applicant did not commit misconduct due to the commission of a serious offense. [Extracted from documents provided by Applicant.]

920305:  Medical Record Entry, Medical Department USS ROOSEVELT (CVN-71)
         Situation: 21 year old male to medical with complaints of numbness to fingertips and toes, chest pain on occasion and weight loss (unplanned) due to admitted cocaine and alcohol addiction. Patient states he is seeking an in-house drug treatment program.
         Plan:
1)       Contacted CDR F_
2)       Counsel to patient
3)       Contact patients division: ACC M_, firewatch div for patient to see department DAPA for drug treatment.
4)       Recommend pt to DAPA in AM.
920312:  NJP for violations of UCMJ:
 Article 92: Dereliction of duty - failure to remain awake during firewatch.
Article 112a: Wrongfully use cocaine.
          Award: Forfeiture of $440 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.

920312:  Medical Evaluation.
         Summary of Defects and Diagnosis: No evidence of withdrawal symptoms at this time.
         Recommendation: Dependency screen for cocaine.

920312:  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.
920312:  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.
920313:  Applicant to unauthorized absence at 0600 on 920313.

 920317:  Commanding Officer, USS THEODORE ROOSEVELT recommended discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct due to drug abuse. Commanding Officer’s comments: “AOAA M_ (Applicant) has been disciplined for one charge of dereliction of duty and one charge of wrongful use of cocaine for which he received NJP. This unacceptable behavior and failure to comply with the Navy’s policy on drugs demonstrate a lack of potential for further useful service. I recommend he be discharged with a other than honorable discharge.” Commanding Officer’s message indicated that a medical evaluation was conducted prior to the recommendation for discharge. The medical evaluation cited in the message indicates that a dependency screen for cocaine was conducted and that the Applicant was psychologically dependent on alcohol. The Applicant was not physiologically dependent.

 920413:  Applicant from unauthorized absence at 1400 on 920413 (31 days/surrendered). Applicant’s EAOS changed to 920922.
920413:  Applicant declined treatment for alcohol dependency at a VA Hospital near the Applicant’s home of record/place of residency.

920415:  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 19920413 by reason of misconduct due to drug abuse (A and B) with a service characterization of under other than honorable conditions. 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). The Board presumed regularity in the conduct of governmental affairs (E).

 Issues 1, 2. Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for illegal drug use, thus substantiating the misconduct for which he was separated. Relief on this basis is denied.

Issues 3, 5. The Applicant contends that he “turned to the Navy voluntarily seeking help” and that he was told he would receive a general discharge. Members administratively separated by reason of misconduct due to drug abuse typically receive a character of service of under other than honorable conditions. Regulations prohibit an under other than honorable conditions discharge if the member’s admission of drug use is the result of a valid self-referral for treatment. In order to be considered a valid self-referral, members must be medically screened as drug dependent. There is no indication in the record that the Applicant was ever screened as drug dependent. Therefore, the Board concluded that that the Applicant was not a valid self-referral for treatment. The Applicant’s under other than honorable conditions characterization was proper and equitable. Relief denied.

Issue 4. The Applicant contends that, “NCIS personnel seemed “irate” that I could not do the case for them.” Neither the evidence of record nor documents provided by the Applicant demonstrate that the Applicant’s administrative separation was improper or inequitable or that the Applicant was treated unfairly or improperly by NCIS or the Applicant’s command. Relief on this basis is denied.

Issue 6. The Applicant contends that he is a “good person” who, as a young man, made a mistake. While the Applicant may feel that his immaturity was 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. Relief denied.

Issue 7. The Applicant contends, through his representative, that he is “a hard working tax-paying citizen... a good father and provider.” 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. The Applicant provided post-service employment-related documentation for the Board’s consideration. The Applicant’s efforts to document post-service accomplishments should be more comprehensive. 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 post-service 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. 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. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 92, failure to obey and order/regulation or Article 112a, wrongful use of a controlled substance.

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 .

E. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs .

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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