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NAVY | DRB | 2005_Navy | ND0501069
Original file (ND0501069.rtf) Auto-classification: Denied


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


 FOR OFFICIAL USE ONLY

ex-PNSN, USN
Docket No. ND05-01069

Applicant’s Request
The application for discharge review was received on 20050614. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable or general (under honorable conditions). The Applicant requests a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293.

 Decision

A documentary discharge review was conducted in Washington, D.C. on 20051207. 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 commission of a serious offense.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

 Applicant’s issues, as stated on the application:

“I would like have my case of discharge reviewed and respectfully request to be upgraded to honorable, pleas
I had an advanced case of HIV+/bipolar depression. I was hospitalized - inpatient in August 1994 for suicide attempt/observation. I now have a total disability/unemployables due to my US Navy Service, with Dept of VA, I needs 100% service-connection for dental work. I have a lower rating, 100% is required. Honorable is helpful for VA benefits.”
Documentation
In addition to the service and medical record, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214 (2)
Applicant’s resume (4 pages)
Certificate of completion, dtd April 30, 2005
AOL Health (webpage) printout, printed October 11, 2003 (4 pages)
Fifty-three pages from Applicant’s service/medical records
Letter to Applicant from Disabled American Veterans with enclosures, dtd March 22, 2005 (4 pages)
Letter from Department of Veterans Affairs, dtd April 12, 2005 (7 pages)
Veterans Affairs forms 21-8760, 21-686c, 28-1900, 28-8890, 22-5490, 4107, 10-5345
Certificate for A Donor of the Year 2005
Psychology Information Online (webpage), printed November 1, 2004 (7 pages)
Degree of Bachelor of Science in Business, dtd August 31, 1999
Letter to Applicant from National Personnel Records Center, dtd March 28, 2005 (2 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19841128 - 19841217      COG
          Active: USN      19841218 - 19901129      HON
Period of Service Under Review :
Date of Enlistment: 19901130             Date of Discharge: 19950605

 Length of Service (years, months, days):

         Active: 04 06 06
         Inactive: None

 Time Lost During This Period (days):

         Unauthorized absence: None
         Confinement:              None

 Age at Entry: 32

 Years Contracted: 4 (8 month extension)

 Education Level: 13.5                               AFQT: 68

 Highest Rate: PN2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.9 (4)     Behavior: 3.6 (5)        OTA: 3.70
Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): National Defense Service Medal, Second Good Conduct Award for period ending 94NOV17, Sea Service Deployment Ribbon (2 awards), Meritorious Unit Commendation (2 awards), Letter of Commendation, CO, NSF, Letter of Commendation, CO, USS BRISTOL COUNTY (LST 1198)


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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 3630600.
Chronological Listing of Significant Service Events :

901130:  Reenlisted this date for a term of 4 years with an extension of 8 months.
9109xx:  Applicant found to be HIV positive. [Extracted from Medical Board Report dated 920901]

91xxxx:          Applicant completed Level III treatment. [Extracted from medical record entry for admission on 940808.]
920814:  Applicant’s security clearance revoked.

 940615:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 940609, tested positive for THC.

940627:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample was confirmed positive for THC.

940723:  NJP for violation of UCMJ, Article 112a. [Extracted from DAAR Report dated 940826.]

940803:  Applicant attempted suicide. [Extracted from medical record entry for admission on 940808.]

940811:  Naval Medical Center San Diego
         Applicant admitted on 940808.
         Chief Complaint: Applicant was referred for severe depression with suicidal ideations and an attempt one week prior to admission.
         Discharge Diagnosis:
         AXIS I: Major Depression
         AXIS II: Histrionic Traits
         AXIS III: HIV infection
         Recommendations:
         “..The patient is fit for full duty and responsible for all of his actions.”

940826:  Drug and Alcohol Abuse Report: Marijuana abuse, ashore off duty. Random urinalysis 940627. Physician found Applicant not dependent and recommended separation. Commanding Officer recommended separation. Comments: PN2 B_ (Applicant) is a 36 year old male with 7 years service. On 24 June 94 a random urinalysis was conducted and Petty Officer B_ (Applicant) tested positive for THC. He was evaluated by a medical doctor and it was determined Petty Officer B_ (Applicant) has no potential for further Naval service because of the ZERO TOLERANCE policy for drug use. He has been medically diagnosed as not being substance dependent; however, it was discovered that he is a recovering alcoholic and that he had attended Level III treatment on at least one occasion possibly two. Petty Officer B_ (Applicant) went to NJP 23 July 1994 and was recommended for Administrative Separation for drug abuse. He is currently waiting to talk with the CO for final disposition of his case.

940929:  Commanding Officer set aside the nonjudicial punishment awarded 940723 after consideration of the new evidence not available at Captain’s Mast.

950109:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 950104, tested positive for THC.

950125:  BUPERS advised PERSUPPDET to initiate administrative separation for misconduct due to drug abuse.

950131:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample was confirmed positive for THC.

950201:  PERSUPDET informed BUBERS CO’s NJP of 940723 was set aside on 940929 at that separation processing on second violation of UCMJ 112a was anticipated.

950207:  NJP for violation of UCMJ, Article 112a:
         Specification: On or about 4 Jan 95 did wrongfully use THC.
         Award: Forfeiture of $661 per month for 2 months, reduction to E-4.

9502xx:         Drug and Alcohol Abuse Report: Marijuana abuse, ashore off duty. Unit sweep urinalysis 950104. Physician found Applicant not dependent and recommended separation. Commanding Officer recommended separation. Comments: Petty Officer B_ (Applicant) is a 37 years old male with 10 years of service. On 4 Jan 95 a random urinalysis was conducted and Petty Officer B_ (Applicant) tested positive for THC. He was evaluated by a medical officer on 19 Jan 95 and diagnosed as not being dependent. Petty Officer B_ (Applicant) is a recovering alcoholic who is on a formal monitoring program attending daily alcohol anonymous meetings. Petty Officer B_ (Applicant) has no potential for further service due to zero tolerance for drug abuse. He received NJP on 95 Feb 07 and will be processed for administrative separation for drug abuse.

950210:  Applicant notified of intended recommendation for discharge with the least favorable characterization of service Other Than Honorable by reason of misconduct due to drug abuse as evidenced by nonjudicial punishment for drug abuse.
950213:  Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.
950214:  Applicant appealed nonjudicial punishment imposed on 950207.

 950412:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed commission of a serious offense as evidenced by Commanding Officer’s NJP of 7 February 1995 for violation of UCMJ Article 112a, that such misconduct warranted separation, and recommended discharge under other than honorable conditions.
950426:  BUPERS message to PERSUPPACT San Diego, CA case not received for mandatory adsep processing/reprocessing of member.
950501:  Commanding Officer, Personnel Support Activity, San Diego, CA, recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense as evidenced by CO’s NJP held 7 February 1995. Commanding Officer’s comments: “I have given Petty Officer B_ (Applicant)’s future potential to serve satisfactory in the United States Navy every possible consideration. I am thoroughly convinced that due to the severity of the infraction of the Uniform Code of Military Justice, coupled with his level of experience and seniority, that he has failed to demonstrate those qualities of integrity, trust and confidence required of every member of our Armed Forces. Petty Officer B_ (Applicant) made a conscious decision to consume an illicit substance, a decision which he was quite well aware that could result in his ultimate discharge from the Navy. I have established an environment that is drug free and my zero tolerance policy is well known throughout my command. Petty Officer B_ (Applicant) knew my policy, elected to not embrace it as his own and used drugs. I have no place in my command for those who abuse controlled substances. I regret that Petty Officer B_ (Applicant) used extremely poor judgment, however, I strongly recommend his immediate separation with an Other Than Honorable Discharge.”

950518:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 19950605 by reason of misconduct due to commission of a serious offense (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).

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. The Applicant’s service was marred by nonjudicial punishment proceedings for violating Article 112a of the UCMJ. 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 should be upgraded because he was diagnosed with HIV and bipolar depression and was hospitalized for an August 1994 suicide attempt. While the Applicant may feel that his medical condition 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.

Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. 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. While the Board was impressed with the Applicant’s volunteer efforts, academic accomplishments and generosity to America’s veterans, the Applicant’s efforts to show post-service conduct need to be more comprehensive. Examples of documentation that should be provided to the Board include 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 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. 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. Representation at a personal appearance hearing is recommended but not required.



Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), Change 9, effective
22 Jul 94 until 02 Oct 96, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - COMMISSION OF A SERIOUS OFFENSE.

 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 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 .

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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