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

 ex-SKSA, USNR
Docket No. ND02-00536

Applicant’s Request

The application for discharge review, received 020321, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to medical.  The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region.  The Applicant listed the Disabled American Veterans as the representative on the DD Form 293.  Subsequent to the application, the Applicant converted to a documentary discharge review.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021206.  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 and narrative reason of the discharge shall not change.  The discharge shall remain: UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted	

1.  Dear Sir or Madam,

To the distinguished men and women of the Military Discharge Review board.  I am pleased and honored to have this opportunity to bring my case to you for review.  I was an above average United States Serviceman who was grateful and pleased to have lunched an exciting career, in the United States Navy.  On April 16th 1986, I was escorted to the Chaplin's office on the USS Juneau.  I was asked if I knew that I was HTLV III positive by one of the officers, on the USS Juneau, I do not remember, which officer asked me the question, my respond was, ”what is HTLV III positive?"  As I waited for an answer, from the officers in charge or the Chaplin, as to what, HTLV III positive meant, there was no answer given neither by the officers in charge, nor the Chaplin attending the meeting.

I was then rushed off the USS Juneau and driven immediately, by one of the officers attending the meeting to Balboa Hospital where I was admitted.  Still not knowing what HTLV III positive was, I was asking everyone that I came in contact with in the medical field at Balboa Hospital, " please tell me what, wrong with me?" but no one responded to my request.

I later learned that HTLV III positive is what is now known in the medical field as HIV/AIDS.  Knowing that I had contracted the disease known as HIV/AIDS the only thing that stayed in my mind was that I going to die soon.  I did not know much about HIV/AIDS or had I been educated about it, all I knew was that there was no cure and that the final prognosis was death.

About a week after I had been admitted to Balboa Naval Hospital.  My attending physician informed me, that I was being prepared for a Medical Discharge, because of my medical status.  About one week later my attending physician informed me that some of the medical information was a mistake and that I was fit for active shore duty.  The HIV/AIDS epidemic testing was not conclusive nor was the medication, with this limited information about HIV/AIDS I found myself, frighten, paranoid, and very isolated.

I have been given the time to reflect on my life and I have learn that HIV/AIDS do not have to be a death sentence.  I can see that I made some mistakes, because of the medical world as well as my own limited knowledge of the HIV/AIDS virus placed me more in harms way by getting involved in behavior that was unbecoming to myself.  I have learned that, "a little bit of knowledge is a dangerous thing."

It was not until 1991, when M_ J_ told the world of his HIV status and I to was able to come out of my isolation and disclose to my parents, family members, and friends that I am HIV positive, my decision to come out of isolation has brought me closer with my family and friends, and from that point on we all are able to understand and see each other in a different light.

Since my discharge from the United States Navy and my battle with AIDS have many thanks of gratitude to the great men and women of the Veteran Administrations, Veterans Medical Hospitals, and clinics, I now have a positive view on my life and future.

I am grateful to God without him in my life, none of my life would have been possible.  I am able to maintain a job under limited conditions at, The United States Postal Service in Las Vegas, Nevada at present.  I have had a very successful career of 7 years working for Costco Industries in San Diego, CA and Las Vegas, NV.  I am also currently enrolled at Regis University, Henderson, NV, majoring in Business Administration, current status senior with plans to graduate by the fall of 2002, current GPA 3.367 which is between the grades of "B+" and "A-." After completion of degree, I plan to do some volunteer fund raising for the Pediatric AIDS Foundation.

It has been a long and sometime difficult journey in my life, but with the help of a loving God, and the understanding of a loving family and many friends, I will continue to fight this HIV/AIDS virus like a true hero and with your help I am sure I will win.  I have learned to forgive mistakes and in doing so I am hoping that the Discharge Review Board can forgive me as well, and help in this fight.

Thanking you in advance, I remain Respectfully,

2.  Dear Chairperson:

After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to support the contentions as set forth by the Applicant, in his request that he be given the opportunity to change of his General (Under Honorable Conditions) Discharge to a Honorable Discharge.

The (FSM) joined the United States Naval Services on October 25, 1984 until November 13, 1989 where he served with several non- judicial punishments to include drug abuse, the narrative reason for his separation from his term of service.

(FSM) states that he is extremely sorry for his youthful and immature behaviors that he demonstrated in the past and seeks now to better his life through seeking positive ways to establish and reassess his priorities.  The (FSM) desires now to first request an up-grade in his military separation Discharge Conditions (Under Other Than Honorable Conditions) to an Honorable Discharge.

The (FSM) seeks now to up-grade his discharge also in an effort to receive Educational benefits and entitlements for his military service and to re-establish his life in hopes for better secure job opportunities and a secure and better future for him and his family.  The (FSM) now respectfully requests an equitable standard be applied as well as equity in treatment in seeking the boards' forgiveness for his mis-conduct behaviors while a member of the United States Naval Services.  The (FSM) sincerely hopes that by respectfully requesting and being granted an Honorable Discharge from the Navy, he feels and will continue to feel that a Honorable Discharge is a matter of Supreme Honor and Respect he will honor and cherish throughout his lifetime.  The (FSM) also states he had always tried to achieve Honor and Respect during his entire military duty in the Naval Service.  We again respectfully request that the (FSM) be given complete and duly consideration by the board.

We also respectfully request that the board consider each reasonable explanation submitted by the (FSM) who now wishes to correct the General (Under Honorable Conditions) character of his discharge to an Honorable Discharge.

We ask for the Boards careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted.  Respectfully,

Documentation

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

Job/character reference dated November 16, 2001
Letter from Regis University, Assistant Professor/Advisor dated November 12, 2001
Copy of general discharge certificate dated November 13, 1989
Copy of DD Form 214
Twenty-seven pages from Applicant's service records
Medical record page dated June 27, 2002

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: None

Period of Service Under Review:

Date of Enlistment:  841025		Date of Discharge:  891113

Length of Service (years, months, days):

	Active:    05  00  19
	Inactive:  None

Age at Entry:  21			Years Contracted:  8

Education Level:  12			AFQT:  50

Highest Rate:  SK3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.69 (7)	Behavior:  3.80 (7)		OTA:  3.74

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR

Days of Unauthorized Absence:  1

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

UNDER HONORABLE CONDITIONS (GENERAL)/Misconduct – Drug abuse (Use), authority:  NAVMILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events:

841026:	Applicant briefed on Navy's policy of drug and alcohol abuse.

850801:	NJP for violation of UCMJ, Article 86: Absence from unit on 0530 - 2100, 24Jul85.
	Award:  Forfeiture of $50 per month for 1 month, restriction and extra duty for 3 days.  No indication of appeal in the record.

850801:	Retention Warning:  Advised of deficiency (Absence from unit), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

871024:	Applicant extended enlistment for 11 months.

880925:	Applicant extended enlistment for 5 months.

890330:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 890321, tested positive for cocaine.

890412:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 890404, tested positive for cocaine.

890413:	NJP for violation of UCMJ, Article 112a: Wrongful use of cocaine on 21Mar89.
	Award: Forfeiture of $464 per month for 2 months, reduction to SKSN.  No indication of appeal in the record.

890413:	Medical evaluation for drug abuse found the Applicant to be a cocaine abuser, not drug dependent.  Recommended Level III, continued after care. 

890413:	Fleet Mental Health Unit: Impression: Axis I: Alcohol abuse, in partial remission, occupational problem, Axis II: Passive-aggressive traits, Axis III: HIV +.  Recommendation: 1) Fit and suitable for duty per psychiatry.  2) He is to be re-evaluated in regards to HIV+.  He says that he plans to resume counseling (Group) on the HIV ward.  3) He is to continue to attend AA and other efforts due to his alcohol abuse and recent cocaine abuse. 4) He is to return to MHU, as needed.  Pt advised and agrees with plan.

890417:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 890407, tested positive for cocaine.

890424:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 890414, tested positive for cocaine.

890427:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 890419, tested positive for cocaine.

890504:	Drug and Alcohol Abuse Report: Cocaine abuse, 1 to 3 times per month, ashore off duty.  Random urinalysis 890321.  DAPA recommended separate via VA hospital.  Physician found Applicant not dependent and recommended Level III treatment.  Commanding Officer recommended separate via VA hospital.  Comments: Previous evaluations indicate SKSN (Applicant) as being a 3.8 performer.  SNM has no potential for future naval service and is being processed for separation.  SKSN (Applicant) was positive for cocaine on the following rehab/aftercare (R/A) urinalysis, 4Apr89, 7Apr89 and 14Apr89.

890607:	Applicant diagnosed as being Human Immunodeficiency Virus (HIV) positive.

890721:	NJP for violation of UCMJ, Article 86: Absence from organization on 0730, 5Jul89 until 0730, 6Jul89.
	Award: Reduction to SKSA.  No indication of appeal in the record.

890731:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by punishment awarded at CO's NJP for VUCMJ, Art. 112a: Wrongful use of cocaine; and as evidenced by four aftercare fitness for duty urinalyses which tested positive for cocaine.

890801:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

890907:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and by a vote of 2 to 1, recommended discharge under honorable conditions (general).

890912:	Commanding Officer recommended discharge under honorable conditions (general) by reason of misconduct due to drug abuse (use).

891031:	CNMPC directed the Applicant's discharge under honorable conditions (general) by reason of misconduct due to drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 891113 under honorable conditions (general) for misconduct due to drug abuse (use) (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).

Issues 1 and 2.  There is credible evidence in the record that the Applicant used illegal drugs.  Drug abuse warranted processing for separation, normally under other than honorable conditions.  The Applicant’s HIV positive status does not mitigate his illegal drug use.  No other narrative reason other than misconduct for drug abuse more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation.  To permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity occurred during the Applicant’s enlistment.  Additionally, there is no law, or regulation, which provides that an unfavorable discharge may be upgraded based solely to enhance job opportunities, or for good conduct in civilian life, subsequent to leaving the service.  Relief not warranted.

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  Representation at a personal appearance hearing is recommended but not required.  

Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560A), Change 6, effective 11 Jan 89 until 13 Jun 90, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO DRUG ABUSE.

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 view DoD Directive 1332.28 and other Decisional Documents by going online at "afls14.jag.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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023