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NAVY | DRB | 2005_Navy | ND0501486

Original file (ND0501486.rtf) Auto-classification: Denied

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

FOR OFFICIAL USE ONLY

ex-SR, USNR
Docket No. ND05-01486

Applicant’s Request

The application for discharge review was received on 20050906. The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review. The Applicant did not designate a representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that he was approaching the 15-year point for review by this Board and was encouraged to attend a personal appearance hearing at the Washington Navy Yard, Washington, DC. The Applicant stated he could not afford to come for a hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20060629. 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 a pattern of misconduct .

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

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

“*(Plainly, I didn’t know what was wrong with me)*
Because of physic iatric problems that became diagnosed after the service. Not aware at time of service. Also I served 2 ½ yrs of my 3 yr obligation Cut-Short!
I M_ A. R_(Applicant), served 2 yrs, five months and twelve days of which I was just 6 months and 18 days short of finishing the 3 year obligation. So close to finishing, this I found somewhat of an injustice. In my medical records which I have attached the one labeled Spokane Mental Health states that I was suicidal during my enlistment which I was ashamed of and hid. I was diagnosed correctly with obsessive-compulsive behavior disorder of which has been a living hell. Thanks to medical counseling and Biblical, I have found some deliverance. I take an expensive medication to help me. Unfortunately I self medicated. As a result of my drinking and sometimes drug abuse as a means of escape I developed a pattern of misconduct. My offenses were as follows. Three hours late coming back to the ship for a duty day. Result Captains Mast. The 2 ^nd offense under age drinking at a Naval Base Club Norfolk Virginia; result Captains Mast. 3 ^rd offense I missed pier sweepers duty result Captains Mast. 4 ^th and last offense derogatory comments about ship during general quarters that conflicted with First Class Petty Officer apparently showing disrespect for officer. Result Captains mast. This last offense I feel could have been handled less severe. Yet what was at the root of the problem with me went undiagnosed until after I sought an answer through following counseling and mental evaluations. Help came after my time in the Navy but only after severe bouts with drug abuse and insane behavior and mental torture. Only after several sessions of counseling, medication and seeking my Lord and Savior Jesus Christ have I found victory. Simply by making my appointments for counseling with doctors and pastors of Churches Ministers of the Gospel of Christ Jesus and giving it to him by letting him have all of my hurts hangups and handicaps. The Union Gospel Mission of Spokane Washington became my home where I got on the path to sobriety and life. It’s now successfully going on 4 years of sobriety and victory. Although I have had some nervous breakdowns along the way I’m looking at life w/a grateful spirit, heart and mind. Being diagnosed after the military has helped me to see what has gone wrong w/me and medication helps apparently very well. Although I have been recently trying to hold down a job I find it very expensive to purchase the medication I need to stay balanced. And I’m trying to receive services form the V.A. Building Hospital and due to the status of my discharge it prevents me from receiving medical benefits. Although I’m attempting to hold down a job and work at a future, its not been easy at any stretch of the imagination. I’ve been diagnosed with Obsessive Compulsive Disorder Behavior and at times severe depression. I take prescription drugs Pail and Risperdal for treatment. I sincerely request another look of sympathy considering my efforts and maybe even have a chance at a V.A. Loan for a home of my own.

Thanks
[signed}
M_ A. R_(Applicant)”

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Department of Veterans Affairs, Veterans application for compensation and/or pension, VA Form 21-526, dtd January 4, 2005 (17 pages)
Authorization and consent to release information to the Department of Veterans Affairs (VA), VA Form 21-4142, dtd June 1, 2005
Letter from National Personnel Records Center, dtd January 13, 2005
Applicant’s DD Form 214 (2)
Two pages from Applicant’s service record
Letter from Union Gospel Mission Ministries, dtd May 10, 2005 (4 pages)
Spokane Mental Health form, dtd December 28, 2001
Medical documents from Spokane Mental Health (24 pages)
Psychological assessment/diagnostic report, dtd October 21, 2004 (4 pages)
Physician’s certification for Medicaid, dtd December 16, 2004
Psychological/Psychiatric Evaluation, dtd October 21, 2004 (4 pages)
Certificate of Baptism, dtd November 5, 2003
Character/Job Reference ltr from S_ W_, Owner of Wigton’s Organic Paradise, undtd
Certificate of completion of the Alpha Course, dtd November 21, 2003
Certificate of Appreciation 2005
Certificate of Completion of SPARC Outpatient Program, dtd June 10, 2002
Authorization for release of protected health information, dtd January 31, 2005
DD Form 149, dtd January 4, 2005
Community Health Association of Spokane report for September 25, 2004 (3 pages)
Community Health Association of Spokane report for October 1, 2004 (2 pages)
Community Health Association of Spokane report for October 8, 2004 (2 pages)
Letter to Applicant from Community Health Association of Spokane, undtd
Community Health Association of Spokane report for October 15, 2004 (2 pages)
Community Health Association of Spokane report for October 20, 2004 (2 pages)
Community Health Association of Spokane report for November 15, 2004 (2 pages)
Community Health Association of Spokane report for December 21, 2004 (2 pages)
Community Health Association of Spokane report for January 14, 2005 (2 pages)
Community Health Association of Spokane report for March 18, 2005 (19 pages)

PART II - SUMMARY OF SERVICE

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

         Inactive: None
         Active: None

Period of Service Under Review :

Date of Enlistment: 19880412             Date of Discharge: 19910502

Length of Service (years, months, days):

         Active: 02 05 12
         Inactive: 00 07 09

Time Lost During This Period (days):

         Unauthorized absence: None
         Confinement:              None

Age at Entry: 18

Years Contracted: 8

Education Level: 12                                 AFQT: 46

Highest Rate: SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: 3.2 (2)                       Behavior: 3.1 (2)        OTA: 3 .30

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214): USCG Special Operations Service Ribbon, Sea Service Deployment Ribbon, National Defense Service Medal.

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

UNDER OTHER THAN HONORABLE CONDITIONS/ Misconduct - Pattern of misconduct, authority: MILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events :

880412: Report of Medical History: Applicant reported no history of mental conditions, marijuana use, other drug abuse, or alcohol abuse. Applicant reported present health good and that he is not on medications.

881121: Commenced active duty for a period of 36 months.

881125: Applicant briefed on Navy's policy of drug and alcohol abuse.

881206: Drug and Alcohol Abuse Report: Marijuana abuse, less than monthly, ashore off duty. Service directed urinalysis. Commanding Officer recommended retention, Level I treatment, and written warning. Comments: SNM tested positive for THC in the accession pipeline urinalysis.

881228: Pre-service waiver for drugs granted.

890106: Retention Warning: Advised of deficiency (Undisclosed pre-service marijuana abuse.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

890716: Applicant to unauthorized absence from 0730 to 1030 on 890716.

890727: NJP for violation of UCMJ, Article 86: (UA)
Date of offense: 16 July 1989
         Award: Forfeiture of $100 per month for 1 month, restriction and extra duty for 7 days and 1,000 word essay on Navy responsibilities. No indication of appeal in the record.

900125: NJP for violation of UCMJ, Article 134: (Drinking underage).
         Date of offense: 22 December 1989
         Award: Forfeiture of $100 per month for 1 month, restriction for 60 days but allowed ashore from 1800-2400 with a Petty Officer as an escort. No indication of appeal in the record.

900405: NJP for violation of UCMJ, Article 86: SNM was UA from his appointed place of duty. [Extracted from Commanding Officer’s message dated 910402.]
         Award: Forfeiture of $300 per month for 1 month, restriction and extra duty for 30 days. Forfeiture suspended for 3 months. No indication of appeal in the record.

900405: Retention Warning: Advised of deficiency (Conviction at NJP on 05 Apr 90 for violation of the UCMJ article 86 indicates a disregard for military discipline and punctuality.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

900507: Applicant arrested by Norfolk, VA police for attempting to solicit a prostitute. SNM was subsequently charged with immoral purposes and visiting a bawdy place. [Extracted from Commanding Officer’s message dated 910402.]

900611: Civil Conviction: General District Court, Criminal Division, Norfolk, VA for violation of solicitation for immoral purposes and visiting a bawdy place.
Sentence: Fined $150.00, jail for 5 days. Jail sentence suspended for 1 year. Fined $100.00 plus court costs.

910322: NJP for violation of UCMJ, Article 91: (Insubordinate conduct)
Violation of UCMJ, Article 92: (Dereliction of duty)
         Award: Restriction for 60 days, reduction to SR, and processed for administrative separation. No indication of appeal in the record.

910328: 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 commission of a serious offense and misconduct due to a pattern of misconduct. [Extracted from Commanding Officer’s message dated 910402.]

910328: 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 and to submit a statement. [Extracted from Commanding Officer’s message dated 910402.]

910401: Report of Medical History: Applicant reported present “health is excellent” and that he is not on medications.

910402: Commanding Officer, USS PREBLE recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and misconduct due to a pattern of misconduct. Commanding Officer’s comments: “SR R_(Applicant) has been an extreme administrative and disciplinary burden to this command. His performance is best characterized as stemming from a lack of maturity and complete disregard for military bearing. His presence aboard this ship is not only predjudicial to good order and discipline, but is also dangerous. A member of a fire party who fails to respond in a timely manner to an actual emergency and verbally wishes serious damage on the ship is a danger to the ship and the entire crew. SR R_(Applicant) has been afforded several opportunities to turn himself around and become a successful sailor, but has not taken advantage of those opportunities. His constant need to question the orders of those appointed over him renders him incompatible for further military service. I strongly urge that SR R_(Applicant) be discharged from the U.S. Navy, and that the characterization be under other than honorable conditions.”

910409: CNMPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct (pattern).

Service Record contains a partial Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19910502 by reason of misconduct due to a pattern of misconduct (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). The Board presumed regularity in the conduct of governmental affairs (D).

In the absence of a complete discharge package, the Board presumed that the Applicant was properly notified of separation proceedings and that he acknowledged his rights to be exercised or waived during separation proceedings. The Applicant bears the burden of overcoming this presumption of regularity by presenting any substantial and credible evidence. The Applicant did not provide any documentary evidence to challenge the propriety or equity of the discharge. Therefore, the Board considered the Applicant’s discharge proper and equitable. Relief not warranted.

When a Sailor’s service has been honest and faithful, it is appropriate to characterize that service as honorable. Characterization of service as under other than honorable conditions 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. There is irrefutable evidence that the Applicant’s conduct during his time in the U.S. Navy was not honorable. Indeed, the Applicant’s records contain:
•         Retention warning entry on 19890106 for deficiencies concerning undisclosed pre-service marijuana abuse;
•         Non-judicial punishment proceedings on 19890727 for violation of UCMJ Article 86 Unauthorized absence;
•         Non-judicial punishment proceedings on 19900125 for violation of UCMJ Article 134 Drinking underage;
•         Non-judicial punishment proceedings on 19900405 for violation of UCMJ Article 86 Unauthorized absence;
•         Retention warning entry on 19900405 for deficiencies concerning conviction at NJP on 19900405;
•         Civil conviction on 19900611 for violation of solicitation for immoral purposes and visiting a bawdy place; and
•         Non-judicial punishment proceedings on 19910322 for violation of UCMJ Article 91 Insubordinate conduct and Article 92 Dereliction of duty.
The Applicant’s conduct, which forms the primary basis for determining the character of his service, falls well below that required for an honorable characterization of service. An upgrade to honorable would be inappropriate; therefore relief is denied.

Based on post service diagnosis, the Applicant contends that his discharge was improper since he suffered from “obsessive-compulsive behavior disorder” during enlistment. When reviewing a discharge, the Board 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 Board generally does not consider the circumstances surrounding the Applicant’s stated condition, the implied incorrect diagnosis, nor the medical treatment given to the Applicant to be of sufficient nature to exculpate the Applicant’s misconduct. The Board found no evidence in the records nor did the Applicant submit any substantial and credible evidence to support the contention that he suffered a mental illness during his time in service. Notwithstanding, the Board sees no connection between the Applicant’s misconduct and his post service diagnosis. To permit relief, an error or inequity must have existed during the period of enlistment in question. No such error or inequity is evident during the Applicant’s enlistment. Relief denied.

The Applicant is advised that 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 or enhancing employment and educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. Since these issues do not serve to provide a foundation upon which the Board can grant relief, relief on this basis is not warranted.

While 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 service, the Board 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. Verifiable proof of any post-service accomplishments must be provided in order for the Applicant to claim post-service conduct and behavior as a reason to upgrade a less than honorable discharge. The Applicant submitted one character reference for consideration. The Applicant’s efforts need to be more encompassing to include evidence of continuing educational pursuits, verifiable employment records, documented community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle. At this time, the Board found that the Applicant’s statements concerning post-service conduct, without documented evidence, do not mitigate the misconduct, which precipitated separation. No relief is granted on this basis.

The following is provided for the edification of the Applicant. The Applicant has exhausted opportunities for review at the NDRB. If further review is desired, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of service.

Pertinent Regulation/Law (at time of discharge)

A. Naval Military Personnel Manual, (NAVPERS 15560A, Change 8 effective 21 Aug 89 until 14 Aug 91), Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT - A PATTERN OF MISCONDUCT.

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

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NAVY | DRB | 2005_Navy | ND0501486

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