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NAVY | DRB | 2005_Navy | ND0501343
Original file (ND0501343.rtf) Auto-classification: Denied


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

ex-SA, USN
Docket No. ND05-01343

Applicant’s Request
The application for discharge review was received on 20050809. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable and the Narrative Reason for Separation be changed to “Medical.” 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 20060413. 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 and reason for 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:

 “I wish to have my discharged changed from an under other than honorable condition to an honorable or general discharge and the reason for discharge to read medical condition.
I enter the service in 1999 and at that time my recruiters know that I had been diagnosis with mental condition but was allowed in anyway, showing that my condition was under control and not a problem.(A93.23 psychological problem) I served in the U.S. Navy for over 20 months; even through I went through some bad experiences during that time in my life.(A00.39)/(A93.10) First my brother who I looked up too, was pistol whipped just after I enter the service, upon his returned from the USMC by someone who came to our home. Some time later my sister tried to commit suicide by overdosing on medication, while I was out at sea and they would not grant me leave to come home to check on her to make sure that see was OK. I was under a lot of stress which lead me to try marijuana once in my life, for which I was caught by the military. I was diagnosed by the military, with schizophrenia which was just before I was even tried marijuana in the first place.(A93.24) Upon return home from the service, I have been again diagnosed by several doctors with a mental condition and have been on medication for years for my schizophrenia and I have been award Social Security disability on my mental condition alone.”

 Documentation
In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:
Applicant’s DD Form 214
Day-Mont Behavioral Health Care medical appointment card
Medicare Health Insurance card
Fifty-six pages from Applicant’s service record

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19990223 - 19990625      ELS
                   USNR (DEP)       19990629 - 19990629      COG
          Active: None
Period of Service Under Review :
Date of Enlistment: 19990630             Date of Discharge: 20010323

 Length of Service (years, months, days):

         Active: 01 08 24
         Inactive: None

 Time Lost During This Period (days):
         Unauthorized absence:    2 days
         Confinement:                       None

 Age at Entry: 18

 Years Contracted: 4

 Education Level: 12                                 AFQT: 59

 Highest Rate: SN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (2)                      Behavior: 2.50 (2)       OTA: 2.92

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): Armed Forces Expeditionary Medal, Sea Service Deployment Ribbon


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 :

000817:  NJP for violation of UCMJ, Article 134 - Underage drinking.
         Award: Forfeiture of $100.00 pay per month for 1 month, restriction for 10 days. No indication of appeal in the record.

000821:  Retention Warning: Advised of deficiency (Violation of the Uniform Code of Military Justice, Article 134 - underage drinking.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

001204:  Preliminary medical tests for OP Alcohol Treatment: Applicant scheduled to begin treatment on 7 February 2001.

010209:  Treatment Summary, Alcohol Treatment Department, Naval Hospital Bremerton: Intensive outpatient treatment from 010205 to 010209, the Applicant was non-amenable with the treatment regimen due to being late on at least three occasions, repeatedly falling asleep in class, and refusing to turn in written material when asked. Prognosis appears to be poor based upon his lack of engagement and insight into his own treatment.
         Diagnosis: 1. Alcohol Abuse, 2. R/O Personality Disorder, R/O Personality Changes due to head injury, R/O other mental conditions.

 010214:  Medical evaluation at Naval Hospital, Bremerton Mental Health Clinic
          AXIS I: Adjustment disorder with mixed emotional features, occupational problem.
         AXIS II: Narcissistic and sociopathic traits. Need to continue to evaluate for disorder.

 010216:  Applicant to unauthorized absence on 010216.

 010218:  Applicant from unauthorized absence on 010218 (2 days).
010220:  Applicant’s statement.

010305:  NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 010226, tested positive for THC.

010308:  NJP for VUCMJ, Art 86:
 Specification: In that SN N_ D. T_(Applicant), USN, on active duty, did, on or about 010216, without authority, absent himself from his unit, to wit: USS BRIDGE, located at Todd Shipyard, Seattle, Washington, and did remain so absent until on or about 010218.
Charge II: VUCMJ, Article 112a
Specification: In that SN N_ D. T_(Applicant), USN, USS BRIDGE, on active duty, did, at or near Seattle, Washington, on or about 010217, wrongfully use marijuana, a controlled substance.
          Award: Forfeiture of $585.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.

010309:  Applicant notified of intended recommendation for discharge by reason of drug abuse and pattern of misconduct. Applicant notified that if separation is approved the least favorable characterization of service possible is under other than honorable conditions.
010309:  Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights.
010314:  Report of Medical History: Purpose of examination: Separation. Block 25: 4) Outpatient ETOH treatment in 2001 - unsuccessful.
010314:  Report of Medical Examination: Purpose of examination: Separation. Applicant was evaluated and diagnosed for Adjustment Disorder with Narcissistic Traits. Applicant found not qualified for active duty due to mental health issues.
010320:  Commanding Officer, USS BRIDGE (AOE 10) recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and a pattern of misconduct. Commanding Officer’s comments: “Seaman Apprentice T_(Applicant) is being processed for administrative separation due to Drug Abuse and a Pattern of Misconduct. SA T_ cannot conform to military life as evidenced by his Nonjudicial Punishments. He knew of the Navy’s policy of zero tolerance for drug abuse, but chose to use drugs. I have no place on my ship for drug users. He has no potential for future naval service. I highly recommend that he be given an Other Than Honorable Discharge.”

010321:  Commander, Naval Surface Group, Pacific Northwest directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion
The Applicant was discharged on 20010323 by reason of misconduct due to drug abuse (A) 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 (B and C).

There is credible evidence in the record that the Applicant used illegal drugs. The Applicant was awarded two nonjudicial punishments (NJP) for violations of UCMJ Article 112a, wrongful drug use, Article 86, unauthorized absence, and Article 134, underage drinking. Regulations permit relief on equitable grounds if the Applicant’s discharge is inconsistent with standards of discipline of the Naval service. 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 was properly notified, processed and discharged under other than honorable conditions by reason of misconduct due to drug abuse. Based upon available records, nothing indicates that the Applicant’s discharge was in any way inconsistent with the standards of discipline in the United States Navy. Relief denied.

The Applicant contends his disciplinary problems were the result of stress caused by his brother’s assault and his sister’s suicide attempt. 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 many members of the Navy endure hardships similar to those of the Applicant. It must further be noted that the vast majority of those members do not commit misconduct as a result of their problems. Despite their hardships, these sailors are still able to serve honorably and therefore earn their honorable discharges. In fairness to those members of the Navy, commanders and separation authorities are tasked to ensure that undeserving Sailors receive no higher characterization than is due. The NDRB found that the Applicant's service was equitably characterized. Relief denied.

 The Applicant implies that his misconduct was the result of mental conditions that existed prior to his entry on active duty. There is a presumption of regularity in the conduct of governmental affairs. This presumption permits the Board to presume that the government’s agents acted in good faith, proceeded within the bounds of the law, and conformed their behavior to appropriate standards during the Applicant’s Naval service and subsequent administrative processing. The Applicant bears the burden of establishing his issues through the presentation of substantial and credible evidence. There is no evidence in the record, nor has the Applicant produced any evidence, to support the contention that his recruiter improperly permitted him to enlist despite a disqualifying mental condition or that his mental condition relieved him of liability or responsibility for his misconduct. The Applicant’s statements alone do not overcome the government’s presumption of regularity in this case. Relief denied.

The NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the reason for discharge if such a change is warranted. As noted above, t he Applicant was awarded two nonjudicial punishments (NJP) for violations of UCMJ Article 112a, wrongful drug use, Article 86, unauthorized absence, and Article 134, underage drinking. The Applicant's DD Form 214, Block 28, Narrative Reason for Separation, indicates he was separated for misconduct due to drug abuse. Based upon the evidence of record, no other Narrative Reason for Separation could more clearly describe why the Applicant was discharged. To change the Narrative Reason Separation would be inappropriate.

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 . The Naval Military Personnel Manual, (NAVPERS 15560C), Change 31, dated 20 Feb 01, effective 12 Feb 2001 until 15 Jul 2001, 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 .

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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