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

 ex-SR, USN
Docket No. ND99-00579

Applicant’s Request

The application for discharge review, received 990323, requested that the characterization of service on the discharge be changed to Honorable.  The applicant requested a documentary record discharge review.  The applicant listed the State Veterans Affairs, Jackson, MS as the representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000110.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  The Board’s vote was unanimous that the character of the discharge shall not change.  The discharge shall remain:  UNDER OTHER THAN HONORABLE CONDITIONS/ PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  My discharge was inequitable because my misconduct occurred during and as a result of severe depression, mental confusion, and a developing neurological and seizure disorder.  My neurologist believes this disorder was caused by inhaling toxic fumes for thousands of hours in my military service and while working on complex overhaul of the U.S.S. Dwight D. Eisenhower at Newport News Shipyard.  My behavior had never been a problem in the past.  See Supporting Documents:
     a.  Letter of recommendation, W_ C_ High School, Pg 1
     b.  Neurologist's report, Pgs 2.3,5,6
     c.  NeuroToxicity's highlighted overexposure symptoms, Pg 12
     d.  NOISH bulletin's highlighted overexposure symptoms, Pgs 19, 20
     e.  Material Safety Data Sheet's highlighted overexposure symptoms, Pgs 31, 33
     f.  Timeline of Service Record and Medical Events with overexposure symptoms
          reported to Medical, Pgs 35, 36, 37

2.  My medical care and evaluation was totally inadequate in recognizing the many reported symptoms of toxicity, including, nausea & vomiting, dizziness, insomnia, fatigue, anxiety, muscle pain, chest pain, and depression.  Treatment was never attempted for depression, even after multiple suicide attempts.  My drug use began only after months of suicidal depression that was never treated.  My now permanent brain damage could have been prevented if I had been removed form exposure when the early symptoms presented.  See Supporting Documents:
     a.  Timeline of Service Record and Medical Events under diagnosis, treatment, and 
          final disposition, Pgs 35, 36, 37
     b.  NeuroToxicity, Pg 12

3.  My training in handling hazardous materials was totally inadequate, with no information given on early recognition of symptoms of overexposure as in recommended by NIOSH and the International Workshop on Solvent Toxicity.  See Supporting Documents:
     a.  NeuroToxicity's highlighted recommendations of training and monitoring, Pgs 10, 
         11, 16 
     b.  NIOSH Bulletin's recommendations of worker education and training, Pgs 28, 29

4.  I was punished, while obviously ill and depressed, with extra duty of 120 days in the same toxic environment, even after many requests for reassignment.  $1,364 in pay was also forfeited.  See Supporting Documents:  Military Record

5.  My waiver of all my rights at discharge was done under duress without adequate explanation of the consequences.  I was severely depressed and had recently made multiple suicide attempts.  See Supporting Documents:  Military Record

Documentation

In addition to the service record, the following additional documentation, submitted by the applicant, was considered:

Letter of Recommendation, W_ C_ High School dated Feb 1, 1999
Neurologist, Dr. L_ V_'s Statement dated Jan 22, 1999
Post-Military Discharge Timeline
Medical report of first seizure episode on Sep 22, 1997
NeuroToxicity's report on the International Workshop on Neurobehavioral Effects of   
     Solvents held in 1985 (NIOSH was a participant)
NIOSH's Current Intelligence Bulletin on Organic Solvent Neurotoxicity, March 
     31,1987
Material Safety Data Sheet on JP-5 jet fuel and DevGrip non-skid (5 pages)
Timeline of Service Record and Medical Events (4 pages)
Applicant's Letter to Senator T_ L_ of Jan 15, 1999
Transcript of personal hearing to predetermine medical benefits, Dept of Veterans 
     Affairs, Jackson, MS date Feb 3, 1999 (24 pages)
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:    None
	Inactive:  USNR (DEP)	930212 - 931003	COG

Period of Service Under Review:

Date of Enlistment:  931004		Date of Discharge:  960522

Length of Service (years, months, days):

	Active:    02  07  19
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  69

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.4 (1)	Behavior:  3.4 (1)		OTA:  3.6

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, AFEM, SWASM(w/Bronze), MUC, SSDR, AFSM 

Days of Unauthorized Absence:  17 

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

940705:	Unauthorized absence from USS DWIGHT D EISENHOWER (CVN69), Norfolk, VA since 0430.

940710:	Returned onboard at 0800 (5 days - absence not excused, member charged 5 days of lost time).

940712:	Unauthorized absence from U SS DWIGHT D EISENHOWER (CVN69), Norfolk, VA since 0420.

940713:	Returned onboard at 1500 (1 day - absence not excused, member charged 1 days of lost time).

940801:	Unauthorized absence from 0700 to 0835 (1 hour, 35 min).  Intentions unknown.  Surrendered onboard ship.

940802:	Unauthorized absence from 0545.  Intention unknown.  Surrendered onboard ship at 0830 (2 hours, 45 minutes).

940803:	Unauthorized absence from 0700.  Intention unknown.  Surrendered onboard ship at 1045 (3 hour, 45 minutes).

940813:	NJP for violation of UCMJ, Article 86 (5 Specs):  Spec 1 - UA from ship from 04300, 5 Jul 94 to 2030, 8 Jul 94; Spec 2 - UA from appointed place of duty, to wit: divisional morning muster on or about 0545, 12 Jul 94; Spec 3 - UA from ship from 0700, 1 Aug 94 to 0835, 1 Aug 94; Spec 4: UA from the ship from 0545, 2 Aug 94 to 0830, 2 Aug 94; and Spec 5 - UA from ship from 0700, 3 Aug 94 to 1045, 3 Aug 94.
	Award:  Forfeiture of $450 per month for 1 month (suspended for 6 months, restriction and extra duty for 15 days.  No indication of appeal in the record.

940815:	Retention Warning from USS DWIGHT D. EISENHOWER:  Advised of deficiency (CO's NJP on 13 Aug 94 for 5 specs of unauthorized absence), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

941008:	Unauthorized absence from 0700.  Intentions unknown.  Surrendered onboard at 0800 (1 hour).

950920:	Civil Conviction:  Hampton General District Court (Traffic Division), Charge 1 - Reckless driving.
	Charge 2 - Failure to wear a seatbelt
	Charge 3 - Driving with a suspended license
	Sentence: Charge 1 -  Fined $100, driver's license suspended for 90 days, court costs; Charge 2 - Fined $25; Charge 3 - Fined $100, 30 days in jail suspended for 2 years, driver's license suspended for 90 days.

951010:	Retention Warning from USS DWIGHT D. EISENHOWER:  Advised of deficiency (civil conviction on 20 Sep 95), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

960216:	Unauthorized absence from ship at 0600.

960227:	Surrendered at Portsmouth Naval Hospital at 2300, absence not excused, charged with 11 days lost time.

960228:	Naval Medical Center, Portsmouth, Va: Date of Admission - 960228 - Pt "thinking about killing myself".  History of present illness obtained by voluntary interview with pt and available records.  This was first NMCP psychiatric admission for this 20 year old single male with 28 mos of continuous active duty.  Pt states he started feeling depressed since June of '95 when he "came out of the closet" and told people he was homosexual, and subsequently got harassed greatly.  The pt is currently UA since Feb 15 at which time he took 15 OTC sleeping pills (?) in an attempt to commit suicide.  He states he was supposed to be at work on the 16th but slept until that evening and since he was already UA for a day he decided to extend that absence.  He has had multiple suicide attempts in the past since last June (cutting wrists with razor blades) and has had homicidal ideation in the past since June as well.  The pts friends brought him to the ER this evening when they were afraid that he might commit suicide.  He has been feeling depressed intermittently since June and has been becoming greater in severity, also complains of decreased appetite, decreased sleep (3 hrs night), anhedonia, and decreased concentration.  The pt cannot contract for safety outside of the hospital but willingly contracts in the hospital.  The pt denies any current suicide or homicide ideations.  ...................Although the pt now drinks about 1 beer per month he has a history of drinking much heavier in which before last April he would drink a minimum of 2 times a week getting intoxicated each time.  Also when in foreign ports last year he would drink to intoxication whenever on liberty.  But when the pt returned from med cruise last April he felt he should not drink that much.  The pt states he first used marijuana when he was 13 years of age then stopped until last September when he started using it about once per week.  The pt also states since December he has been using amphetamines, cocaine and LSD, at least one of them per day since December.  He states he has no money secondary to spending all f his money on drugs and despite having no money he demonstrated an inability to stop by prostituting himself in order to get money so he could do drugs. .......Was seen by a mental health professional for ADHD when the pt was 10 years and when the pt was 13 years of age for what he says was problems, including his mother and aunt who both currently see psychiatrists for unknown disorder.  He also states prior to last June he has had brief thoughts of suicide ideation intermittently in the past but has never attempted or formulated a plan prior to June.  Pt was admitted to ward 3E where he was afforded individual, group, and milieu therapy and biophychosocial services.  Serial mental status examinations revealed no evidence of psychosis, organicity, major mood, anxiety or dissociative disorder.  He was considered competent to participate in discharge planning and did so actively.  At the time of discharge, the pt was not suicidal, homicidal or psychotic and had received the maximum benefits from inpatient hospitalization.  
Diagnosis:  AXIS I - Polysubstance Dependence (ETOH, Amphetamine, Coacaine, LSD, THC), AXIS II - None, AXIS III - None
Date of Discharge:  5 Mar 96.

960321:	NJP for violation of UCMJ, Article 86:  Unauthorized absence from the unit from 96FEB16 until 96FEB27.
	Award:  Forfeiture of $490 per month for 1 months, restriction and extra duty for 30 days, reduction to E-2.  No indication of appeal in the record.

960325:	Applicant's Voluntary Statement:  "I am a homosexual.  I have sexual and emotional relationships with men.  I feel I have always been gay b/c even before I ever had sex I had sexual dreams about people of the same gender as myself with very few or no females in them.  Although I have had sexual relation with females I find males much more satisfying.  I have never had any type of sexual relationship with any male member of the United States Armed Forces.  I feel I cannot change who or what I am for anyone else or the U.S. Navy.  I have never showed public display of effection with a male b/c I know this does offend some people and I could be tried by NJP for doing so.  In contrary to paperwork from Portsmouth Naval Hospital I have never had sex with a male or female in exchange for money of any type of gifts.  These gift were the only way he knew how to show effection and we were in a commit relationship from April 1995 until Feb 1996.  I feel I need to be separated from the United States Navy b/c of constant harassment by co-workers and supervisors, a fear for my personal safety due to written treats dealing with my sexuality, and I am tired of living a lie in the United States Navy.

960328:	NJP for violation of UCMJ, Article 112a (3 Specs):  Spec 1 - wrongful use of controlled substance, to wit: amphetamines; Spec 2 - wrongful use of a controlled substance, to wit: cocaine; Spec 3 - wrongful us of a controlled substance, to wit: LSD.
Award:  Forfeiture of $437 per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.
960328:	CO, USS DWIGHT D EISENHOWER notified applicant of intended recommendation for discharge under Other Than Honorable conditions by reason of Misconduct due Drug abuse as evidenced by all drug abuse incidents in your current enlistment, misconduct due to a Pattern of Misconduct as evidenced by all punishments under the UCMJ in your current enlistment, misconduct due to Commission of a Serious Offense as evidenced by all serious offenses in your current enlistment, misconduct due to Civilian Conviction as evidenced by your civilian conviction in Hampton, VA, General District Court (Traffic) and by homosexual conduct as evidenced by your statement that you are a homosexual or bisexual, or works to that effect, which creates a rebuttable presumption that you engage in, or intend to engage in homosexual acts and by engaging in, attempting to engage in, or soliciting another to engage in a homosexual act or acts..

960328:	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ, Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.  Applicant did not object to the separation.

960415:	Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse, misconduct due to a Pattern of Misconduct, misconduct due to Commission of a Serious Offense, misconduct due to Civilian Conviction and by reason of homosexual conduct.  Commanding officer’s comments (verbatim):  "SR (Applicant)'s misconduct is incompatible with naval service.  I recommend SR (Applicant) be expeditiously discharged from the Navy with an Other Than Honorable discharge by reason of misconduct due to drug abuse, misconduct due to a pattern of misconduct, misconduct due to commission of a serious offense, misconduct due to civil conviction and by reason of homosexual conduct."

960502:	BUPERS directed the applicant's discharge under Other Than Honorable conditions by reason of Misconduct due to a Pattern of Misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 960522 under Other Than Honorable conditions for misconduct due to a Pattern of Misconduct (A).  The Board presumed regularity in the conduct of governmental affairs (B).  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).

In the applicant’s issue 1, the Board determined this issue is without merit.  The applicant claims his misconduct occurred during and as a result of severe depression, mental confusion and a developing neurological and seizure disorder.  There is insufficient documentation to show that the applicant was afflicted with the disorders mentioned above, at the time of his military service.  The documentation provided indicates that his post-service illnesses may have been caused by his military work environment but is not conclusive.  If the applicant feels this is a legitimate issue, he should petition the Board of Correction of Naval Records (BCNR) for there review.  The NDRB was able to evaluate the propriety and equity of the Applicant’s discharge and the NDRB determined the discharge was proper and equitable.   Relief denied.

In the applicant’s issue 2, the Board determined this issue is without merit.  The applicant claims his medical care and evaluation was totally inadequate and his drug abuse began only after months of suicidal depression that was never treated.  The applicant was discharged for developing a pattern of misconduct, which was proper and equitable.  In summary, he went UA on several occasions, had a civilian conviction for reckless driving with a suspended license, while not wearing a seatbelt, and finally, he was busted for wrongful use of illegal drugs (3 specifications).  Each individual is responsible for his actions and the applicant blatantly violated the UCMJ and was justly punished.  The quality of his medical care and evaluation of his mental state is not an issue for this Board to address.  The applicant can petition the BCNR to review the circumstances of his medical treatment and evaluation.  Relief denied.

In the applicant’s issue 3, the Board determined this issue is without merit.  The applicant claims his training in the proper handling of hazardous materials was inadequate.  That may be true but this issue has no bearing on the cause of his discharge.  The applicant was discharged for developing a pattern of misconduct, of which the last UCMJ violation was drug abuse.  The applicant made a conscious decision to violate the UCMJ and was discharged properly and equitably.  Relief denied.

In the applicant’s issue 4, the Board determined this issue is without merit.  The applicant claims he was punished while obviously ill and depressed.  There is no evidence that the applicant was ill at the time of his punishment nor is there a requirement for an individual to be in good mental health to be punished for violating the UCMJ.  Relief denied.

In the applicant’s issue 5, the Board determined this issue is without merit.  The applicant claims the waiver of rights he signed was done under duress without adequate explanation of the consequences.  There is no evidence to show that the applicant was under any duress to sign his acknowledgement of rights or the statement of awareness and request for, or waiver of privileges.  The applicant had an opportunity to consult with counsel and he waived that right.  He also waived his right to an administrative review board and did not object to the separation.  If he felt he needed additional explanation of the consequences of his discharge he should have consulted with counsel.  It was free of charge.  Relief denied.

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 – A PATTERN OF MISCONDUCT. 

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 obtain a copy of DoD Directive 1332.28 by writing to:

		DA Military Review Boards Agency
		Management Information and Support Directorate
		Armed Forces Reading Room
		Washington, D.C.  20310-1809

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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		Washington Navy Yard
		720 Kennon St SE Rm 309
		Washington, D.C.  20374-5023