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

  ex-ABEAR, USN
Docket No. ND04-01284

Applicant’s Request

The application for discharge review was received on 20040810.  The Applicant requests the characterization of service received at the time of discharge be changed to general (under honorable conditions).  The Applicant requests a documentary record discharge review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050201.  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/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “To whom it may concern:

My name is B_ R_ (Applicant).  I am writing in regards of the discharge I received upon leaving the Navy.  I only spent eleven and a half months in the Navy; from January 14 2002, to December 11, 2002.  My discharge is Under other than Honorable Conditions/Misconduct due to Drug Abuse.  I received this discharge for failing a urinalysis.  I am going to speak of my entire time in the Navy and my disability I gained from it.  I would like you to consider changing my discharge to General /Under Honorable Conditions.  I am requesting this change to better my life and my chances of receiving disability from the Navy.  In some parts this letter may be informal, but out of complete honesty.

I would first like to state that I take complete responsibility for my actions.  I also received full disciplinary action for them.  I would like to point out that my discharge says Misconduct due to Drug Abuse.  I did not abuse any drugs; I used marijuana only on one occasion while serving in the Navy.  I do not think I deserve to be labeled as a drug abuser, an abuser repeatedly and destructively does something.  I only used once.  I admitted to that one use and received punishment which was 45/45, reduction of rank and loss of pay x3.

I would now like to familiarize you with my entire time in the Navy.  I arrived in Great Lakes on January 12, 2002.  I had no problems my few months there.  In February I began having pain in my feet due to bunions and shin splints.  Medical told me it was a common and would soon go away.  In March I was promoted and graduated.  I was sent directly to NATTC Pensacola Florida.  There was trained to become an Aviation Boatswains Mate.  The beginning of April I began having severe pain in my calves and knees.  I went to medical and after being seen by a specialist and having blood test done I was diagnosed with Patellar Femoral Syndrome (PFS).  The specialist told me that PFS goes away in few weeks to a month.  If it did not go away it would last maybe my life time.  The specialist also told me that it happened from boot camp and to mostly a lot of shorter females.  Usually around 5’3”, I am 5’2”.  He said the strenuous activity is to difficult for our small bodies.  I went to physical therapy the rest of my time at NATTC.  Some days my knees were so inflamed and sore I could not get myself out of bed.  Since I was not aloud to participate in PT one of my teachers took that time to help me with some extra physical therapy.  I was not aloud to march or run.  After school and on the weekends I was not able to do a lot.  It was very difficult to get around.  My legs were very weak, I did not sleep many nights due to cramps and spasms and twitching.  Some days the pain was less, but usually more.  Three weeks before graduation my doctor informed me I needed to make a decision to go to my next duty station or stay there for at least three extra months to see if my legs improved any.  He highly recommended I stay.  He said my legs were not in good enough shape to continue on.  That is all he said, but never stressed how sever that PFS was.  I was very disappointed, it was finally time to do what I came to do and someone is telling me I have to wait.  I wanted to go to the ship with the rest of my classmates.  The doctor led me to believe that with physical therapy I could completely heal.  So I lied and said I was fine, thinking if I continued the physical therapy on my own I would get better.  My doctor told me he knew I was lying he could tell my legs were not okay, but he said he couldn’t stop me it was my decision.

Following ‘A’ school I went on leave to Pittsburgh, Pa for two weeks.  I sat at home giving my legs a break.  At that time my knees were also burning when I walked or went on stairs.  I could not run or handle any physical activity.  After my two weeks I took orders to the John C.  Stennis on NASNI in San Diego, Ca.  I actually spent a few days at TPU on 32nd Street awaiting the ships return from cruise.  I then checked onto the Stennis in May where V2 division assigned me to the Arresting Gear.  I worked hard everyday.  I gained a feeling of importance and maturity I had never felt before.  After a few months of ladder wells, lifting and long periods of squatting and standing I began to slow down.  My legs were extremely swelled and cramped.  Still through all the pain I never told anyone or reported to medical.  I feared I would he removed from my work center or the ship.  I finally felt meaning in my life and important.  I was depended on and good at something difficult.  I kept telling myself my legs would improve, but everyday my burden grew heavier.

I was beginning to drain my self and I was becoming emotionally involved with my legs.  At this time I still was not familiar or trusting in my chain of command.  I didn’t know who to go to or trust.  I was very confused and I woke up one morning and didn’t want to go through the day.  So I stayed in bed and never went to work.  The next day I went and was told I had been marked UA the day before.  No one asked why just sent me to take a urinalysis and sent me back to work.  After a few weeks I couldn’t take it anymore and I needed time to think and rest.  I ended up going UA two more times.  Once for eight days the other for fourteen.  The last time I started thinking I didn’t want to be in the Navy anymore.  I started confiding in a few friends in the work center and told them how I could get out.  They told me only with family problems or failing a urinalysis.  I got myself worked up thinking my chain of command wouldn’t help me.  So I smoked marijuana.  In the meantime the chief if V2 asked me what was going on, there were never problems with me.  I still said nothing about my legs.  I just said I was confused and having doubts about the Navy.  So he made me an appointment with the ships psychologist, he thought talking to someone would help.  It did I got rid of a lot bothering me.  I saw the psychologist maybe three times.  I filled out long questionnaires and told everything from childhood until Navy.  Talking about all of this was difficult.  He diagnosed me with Anxiety, Post Traumatic Stress Disorder, and Borderline Multiple Personality.  He prescribed Paxil which I began immediately taking.  He told me he didn’t think I belonged in the Navy or should have ever been there.  Considering my past and condition he asked how I would feel about leaving the Navy.  I know I said I wanted to but I really didn’t.  I was disappointed for the Navy had disciplined me and put me in the right direction.  But I feared my health was in extreme danger.  So I agreed and he told me he was requesting a Medical Discharge.  He said I would be out of the Navy and off the boat in two weeks or less.  He also told me it was a danger for me to be on the boat, but I was not a danger to others.  He recommended I continue therapy and medication after separation.  About six to nine days after that appointment I was called to legal where I was told I failed a urinalysis.  I admitted to using marijuana.  I waived my right to mast and took punishment about two weeks later.  After my forty-five days I was discharged.

After being separated from the Navy I went one and a half years without seeing a doctor for my legs or mental health.  I had no health insurance or a permanent home.  In the end of 2003 I finally claimed homeless in at San Diego Social Services, where I received health insurance and food stamps.  After receiving both I tried to work but my legs couldn’t handle it.  I tried to work three different times.  I worked one day at the Hyatt in downtown.  It was too prolonged standing and heavy lifting.  Then I began working at Henrys Marketplace in Chula Vista for one and a half weeks.  I quit working next door at Albertson for a lot higher.  After two months my legs were the worst they had ever been and I couldn’t handle it any more.  At this time is when my sickness spread into my back and neck.  My legs were extremely swelled with a lot of popping, burning, twitching, spasms, and at times they would collapse as I was walking.  Some mornings it took me 25-40 minutes to get out of bed.  My back and neck muscles pulled and twisted.  I began spending most of my time in bed it eliminated swelling and some cramping but all of my pain never stopped.  From that time until now I have pain in my legs twenty-four hours a day, seven days a week It was impossible to walk without assistance.  Not only was I physically in pain but emotionally and mentally distressed.  I feared what this would to my future and how I would take care of myself.  At this point I saw no hope for my situation.

I began to see Dr. R_ of the Chub Vista Family Clinic.  My insurance did not cover a lot, so approvals took a while.  She saw me for my anxiety and changed my medication to Zoloft.  Also diagnosing me with Chronic Fatigue.  For my legs she referred me to physical therapy at Scripps Memorial Hospital in Chula Vista.  The physical therapist, E_ V_, said I needed pool therapy and gym therapy.  She requested six visits of each.  My insurance would only cover gym therapy and three sessions.  Within those three sessions I improved greatly.  I began being able to walk without help and could walk for almost ten minutes.  There I worked on loosening my muscles, strengthening, and balance.  In my last visit E_ told me my right leg is damaged more than my left and may never completely heal.  That I should continue physical therapy as soon as I could, and continue for probably a lot of years.  After my last visit I moved to Puerto Rico, around the end of February.  It’s been about six months and I have not seen a doctor.  And my pain level is increasing very rapidly.  I do not have insurance and am not able to work.  My pain is so bad I cannot do barely light house work.  My body is useless.  I cannot sit or stand in excess; I cannot squat, bend or lift anything.

I am asking you to please consider my request.  I would like to continue improving my legs hopefully enough to care for myself.  As of right now I cannot even have children because of my legs.  My entire life is on hold.  I never asked for this to happen and never joined the Navy thinking I would leave with a life changing disability and no help to fix it.  Try to imagine using your legs every day and then one day you cannot.  Its one of the scariest things that can happen.  When I have children one day I want to run and play with them, I want to play sports again.  I want to work and enjoy my life.  Since I stopped working in San Diego my boyfriend has been taking care of me.  It has been very difficult and we have struggled greatly.  We now live with his grandparents and he is trying to find work while I try to get my GED and help for my legs.  Without your help I have slim to no chance of changing my health or my life around.  I don’t want to spend the rest of my life wondering how I will get money to feed myself or see a doctor, or even where 1 might sleep the next night I did make a mistake, but my injury did come from the Navy and I don’t think I should spend my life suffering from it.  I may not have carried out my oath the way I was supposed to, but the military gave me something I didn’t ask for.  It will change my life till the day I die.  Please do not turn me away I am too young to have my body in this bad of condition.  Thank you for your time.

Sincerely:

B_ M_ R_ (Applicant)”

Documentation

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

Applicant’s DD Form 214 (Member 1 and 4 (2))
Light duty chit, dated May 1, 2002
Light duty chit, dated April 5, 2002 (2)
Thirty-two pages from Applicant’s military and civilian medical records
Authorization to release information of health records, dated February 23, 2004
Outpatient facesheet, dated December 5, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	011113 - 020113	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  020114		Date of Discharge:  021211

Length of Service (years, months, days):

	Active:    00  10  28
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  11			AFQT:  61

Highest Rate:  ABEAA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (1)		Behavior:  1.00 (1)		OTA:  2.00

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events:

021002:	Medical Record entry: Diagnosis: AXIS I: Opioid dependence, by history, in remission.  Cannabis dependence.  Posttraumatic stress disorder, chronic, EPTE.  AXIS II: Borderline personality disorder, EPTE.  [Extracted from supporting documents furnished by the Applicant]

021025:	NJP, violation of the UCMJ, Article 112a.  No further information in service record.

021125:	Medical Record entry: Diagnosis: AXIS I: Post traumatic stress disorder, chronic, EPTE, Opioid dependence, EPTE, in remission.  Cannabis dependence.  AXIS II: Borderline personality disorder, EPTE.  [Extracted from supporting documents furnished by the Applicant]

021211:	COMCARGRU SEVEN directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

Partial Discharge Package

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20021211 under other than honorable conditions for misconduct due to drug abuse (A).  After a thorough review of the 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 presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).

Issue 1:  There is credible evidence in the record that the Applicant used illegal drugs.  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.  While she may feel that her physical and mental problems were contributing factors, they do not mitigate the Applicant’s disobedience of the orders and directives that regulate good order and discipline in the naval service, demonstrating she was unsuitable for further service.  The evidence of record does not demonstrate that the Applicant was not responsible for her conduct or that she should not be held accountable for her actions.  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.  The summary of service clearly documents that drug abuse was the reason the Applicant was discharged.  No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged.  To change the Narrative Reason for Separation would be inappropriate.  Relief denied.

The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board (NDRB).  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veteran’s benefits and this issue does not serve to provide foundation upon which the Board can grant relief.  

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 her 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), re-issued October 2002, effective 22 Aug 2002 until Present, 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 503, Propriety. 

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Equity. 

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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