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


FOR OFFICIAL USE ONLY


ex-SR, USN
Docket No. ND05-01332

Applicant’s Request

The application for discharge review was received on 20050808. The Applicant requested a documentary review and that his characterization of service be changed to general (under honorable conditions). The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060427. After a thorough review of all available 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 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
Applicant’s issues, as stated on the attached letter:
“Dear Sir,

My name is K_ T_ H_(Applicant); I was other then honorably discharged from the U.S. Navy on July 17, 2002. I was discharged for using illegal substances which I have no recollection of doing. My problem was with alcohol not drugs I would not have used drugs if I had been in a clear state of mind the idea of doing any kind of drug disgusts me. I did on the other hand drink to excess, it was a very hard time in my life my father who is now passed on, was trying to commit suicide I was very far away from him and could do nothing to help. I was stationed in San Diego CA; he lived in Fresno CA, which is almost 400 miles between us so I was unable to be there in his time of need. This along with many other reasons caused me to drink. I was a blackout drinker so I did things that I normally would not do, like doing the marijuana I tested positive for. I remember very well the first and only PAC I went out on my father had just called trying to get me to come home for a while. He told me he didn’t know how much longer he was going to be around this made me very uneasy to say the least I told my first lutenant about the whole situation and he was very unsympathetic, which I’m sorry to say did nothing to slow my drinking habit. A few days later we left to go chase drug runners in South America the entire time I could do nothing but worry about my father it affected every aspect of my life, my work and my behavior. When we pulled to shore and I got on dry land I lost it we were there in total about 5 days and still to this day I can’t remember a single one. To be honest I don’t think I would want to even if I could. When we returned to the states I was someone totally different I drank a fifth of tequila every day just to cope with my job and the people I hated so very much. My step-mother informed me that while I was way my father stuck a double barrel shotgun in his mouth luckily the police found him and he was taken to a mental institution. So knowing he was now safe I decided to crawl into a bottle and stay there. Everyday I would wake up on my ship with no idea of how I got there or what had happened the night before and after work I would repeat the process just to numb the pain a little. When the Master at Arms called me into his office and told me I had come up positive on a drug screening I was blown away I would never had jeopardized my career by using drugs I knew that commands would come and go, that things would get better for me, that I was only in a slump. But not anymore not for me I had done something that I could not take back and worst of all I had no recollection of ever doing so. Since my separation from the navy I have pulled my life together I am now attending college and I have been sober for over a year, I am going to be a father soon and I would like to get a degree in business management. I have gotten myself on the right track the only problem is my discharge from the navy would make it very hard for me to find any kind of decent gainful employment. I made some youthful indiscretions in a very hard time in my life, and now I am trying to pull my self up from that please consider me for an upgraded discharge. Thank you for letting me plead my case.

Thank you, ”
(Signed K_ H_)
Documentation

The Applicant submitted the following documentation for the Board’s consideration in addition to the service and medical records:

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)     20001130 - 20010129      COG
         Active: None

Period of Service Under Review :

Date of Enlistment: 20010130             Date of Discharge: 20020717

Length of Service (years, months, days):

         Active: 01 05 18 (Does not exclude lost time.)
         Inactive: None

Time Lost During This Period (days):

         Unauthorized absence: 9 days (Extracted from DD Form 214, Block 29)
         Confinement:              None

Age at Entry: 20

Years Contracted: 4

Education Level: 12                                 AFQT: 40

Highest Rate: SR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: 2.0 (1)     Behavior: 1.0 (1)                 OTA: 1 .83 (1)

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Navy Battle “E” Award, National Defense Service 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 1910-146, formerly 3630620

Chronological Listing of Significant Service Events :

001130:  Pre-service waiver for DEP discharge granted.

011022:  NJP for a violation of the UCMJ, Article 111 (drunken or reckless operation of a vehicle, on 011001).
         Award: Forfeiture of $521.40 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.

011113:  Substance abuse screening; recommend alcohol treatment in a partial hospitalization program, smoking cessation, and FMH referral.

011122:  Applicant reports on Substance Abuse Rehabilitation Department (SARD) screening; last substance use THC on 011122.

011126:  Applicant to treatment at SARD, San Diego for alcohol dependence, nicotine dependence, and post-traumatic stress disorder. Referred as a result of an on base DUI in October 2001. Patient has received treatment twice prior to this treatment. Applicant reports last drug use on 011124, THC.

011127:  Applicant tested positive for cannabinoids.

011221:  Applicant from treatment at SARD, San Diego with continuing care requirements of meet command DAPA monthly and attend a minimum of 12 aftercare groups.

020416:  NJP for violations of the UCMJ, Article 86 (unauthorized absence) and Article 112a (wrongful use of a controlled substance).
         Award: Forfeiture of $582 per month for 2 months, restriction and extra duty for 45 days. No indication of appeal in the record.


020624:  Applicant referred to SARD following a positive cannabis and cocaine urinalysis on 16 Apr 02. Applicant stated he does not remember doing cocaine and thinks that might be an error. Diagnosed as PTSD, alcohol and nicotine dependent, recommended for residential treatment.

020626:  USS Oldendorf (DD-972) issued orders for Applicant to report to SARD, San Diego.

020714:  SARD, Pt. Loma, Applicant at end of second week of SARD, submitted to breath alcohol test, .184.

020714:  Applicant tested positive for cocaine.

020717:  Evaluation and Counseling Record, Block 41, comments: “Seaman H_ (Applicant) has had some personnel problems with has caused him to be a burdened to the division. He requires constant supervision and is not reliable.”

020717:  DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct due to drug abuse, authority: MILPERSMAN, Article 1910-146.

Service Record did not contain the Administrative Discharge package.

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PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW
Discussion

The Applicant was discharged on 20020717 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). The Board presumed regularity in the conduct of governmental affairs (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 general (under honorable conditions). Applicable regulations require that a Sailor’s characterization of service be based upon the member’s total performance of duty and conduct during the current enlistment. The Applicant’s service record documented two non-judicial punishments for violations of the UCMJ, Article 86 (unauthorized absence), Article 111 (drunken or reckless operation of a vehicle), and Article 112a (wrongful use of a controlled substance). Processing for separation is mandatory for sailors who abuse illegal drugs, the misconduct for which that Applicant was discharged. The evidence of record clearly documents the Applicant’s blatant disregard for authority and does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Separations under these conditions generally result in an under other than honorable conditions characterization of service. The Board could discern no impropriety or inequity. Relief denied.

The Applicant contends that his drug and alcohol use in the Navy can be attributed to family problems. The NDRB recognizes that serving in the U.S. Navy is challenging. Our country is fortunate to have men and women willing to endure the hardships and sacrifices required in order to serve their country. It must be noted that most members of the Navy serve honorably and therefore earn their honorable discharges. While the Applicant may feel that his family problems led to his abuse of alcohol and his subsequent drug use, the record clearly reflects his drug use even while undergoing treatment at the Substance Abuse Rehabilitation Department, Pt. Loma, Medical Hospital. His continued misconduct demonstrated he was unfit for further service and unwilling to conform to the standards of the Naval Service. The NDRB found that the Applicant's characterization of service was both proper and equitable. Relief denied.

The Applicant contends that he needs an upgrade for the purposes of gaining decent employment. There is no requirement or law that grants recharacterization based on the issue of obtaining favorable employment 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 purpose of enhancing employment, housing, medical or educational 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 is not warranted.

In the absence of a complete service record i.e. discharge package, the Board presumed regularity of governmental affairs. The record does document the Applicant’s NJP’s and his positive urinalysis’s for THC and cocaine and at least two medical treatment programs for alcohol dependence. The Board presumed that the Applicant was notified of his impending recommendation for administrative discharge, given the option of electing an administrative discharge board hearing, and that proper authority directed the Applicant’s discharge as under other than honorable conditions due to misconduct. If the Applicant feels his discharge was administratively flawed he bears the burden of establishing his issues through the presentation of substantial and credible evidence.

The Applicant contends that since his separation from the naval service he has led a productive life, has a family, does not drink, and is attending college. There is no law or regulation, which provides that an unfavorable discharge may be upgraded based 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 evidence of a drug free life, educational documents, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities. The Applicant provided no documentation to substantiate his claims of post service conduct. T he Board determined the Applicant’s undocumented post service conduct to be insufficient to mitigate his misconduct while in the Naval service. 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 . The Naval Military Personnel Manual, (NAVPERS 15560C), Change 33, effective 16 Jul 2001 until 21 Aug 2002, 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, 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