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

  ex-MS1, USN
Docket No. ND05-00199

Applicant’s Request

The application for discharge review was received on 20041109.  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.  Subsequent to the application, the Applicant obtained representation from the American Legion.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050323.  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.  Applicant discharged in absentia.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “Before being diagnosed with HIV in May of 1998 I was a 4.0 sailor & one of the top instructors at my last command.  But the stress of my job combined with my illness began to take its toll on me and I began to become very depressed and at times suicidal.

Two week afterwards I was sent TAD to a program called to integrate me on how to live with HIV.  This did not help me.  Every 6 months I was required to attend this program TAD for 2 weeks.
Somehow or another a SN saw a message concerning my status at Headquarters and deciedided to inform everyone in the command about my HIV.  Shortly after I was removed from my training position and was given to SC L_ who was afraid to be in the same room with me with the door closed.  During this time I was sick a lot and had a lot of appointments but I all way called and let him know where I was.

Concerning the UA’s was because when I would show up for muster he would ask me if I had anything to do and if I said no he would say find something.
When someone like the commander would ask where I was he would lie and say he did not know.  You can tell by the discharge paperwork it has been tampered with.
He also lied about me being on leave as well as I will include a handwritten plan from him.  He keep the leave paper.  I reapply went to my doctor and my physicist for help but all they did was tell me that I did have serious problems which I already knew that.  I feel so let down by the Navy and the system itself.  I really think that if my command had really and truly wanted to help me they could have because I couldn’t help myself.  I realize I made mistakes but so did they I didn’t know what to do or how to help myself at that time.
When I signed those discharge papers they had had me locked in a cell for 5 hours while they drew them up.  The SC legal man told me I had no choice but to sign them or I would court-martialed and sent to prison for 20 years because SC L_ had lied and said I wasn’t on leave instead I was in deserter status.

Prior to being arrested I was in my physicist’s office in session and they had told her to call the MP’s I she saw me.  Can you immerge the betrayal I felt toward her?

I’m enclosing some documents that might give you a better understanding of what was happening to me.”

Additional issues submitted by Applicant’s counsel/representative (American Legion):

2.  “Equity Issue:  Based on our review of evidentiary record and on behalf of this former member, we request that the Board consider provisions of SECNAVINST 5420.174D, Part V, Paragraph 503, as it pertains to post-service conduct, in assessing the merits of this application. 
______________________________________________________________________

In accordance with Title 32, CFR, Section 724.116 and SECNAVINST 5420.174D, Part I, Paragraph 1.20, The American Legion submits to the Naval Discharge Review Board (NDRB or Board) the above issue and following statement in supplement to this Applicant’s petition.

The Board’s attention is invited to Blocks 12 and 18 of DD Form 214.  This former member entered active duty on 860918 served honorably; reenlisted 900402 served honorably; then reenlisted 950801 for the period of service under consideration.  Block 18 should include: Continuous Honorable Active Duty Service from 860918 until 950731 with appropriate corrections to Block 12. 

Review of the available records reflect that this former member had two prior periods of honorable service, maintained satisfactory 3.75 performance and 4.00 conduct markings with a 3.70 OTA and earned the SSDR (3), GCM (3), MUC, NMCAM (3), BER, JMUA, HSM, CGMUC, CGSOR, OSR, and AFOA.  He was diagnosed as being HIV positive in May 1998 on a physical exam screening. His performance and conduct declined sharply going forward.  He had occupational difficulties, was diagnosed with major depressive disorder, tested positive for illegal drugs on 3 occasions and had several lengthy periods of UA totaling in excess of 6 months lost time.  The SR clearly reflects that his HIV condition was an extenuating factor in his misconduct.  Following due process notifications, he was discharged on 001215 Under Other Than Honorable Conditions due to misconduct as authorized by NAVMILPERSMAN, Article 1910-146.

Essentially, as noted on DD Form 293, this Applicant is requesting that his discharge be upgraded because the Navy failed to provide him adequate medical and psychological help and because his immediate command sabotaged his chances for a medical discharge by charging him as being UA when they knew where he was.  He has not submitted additional documentation beyond copies of his service and medical records for consideration.

The American Legion’s express purpose in providing this statement and any other submittals or evidence filed is to assist this Applicant in the clarification and resolution of the impropriety or inequity raised.  To that end, we rest assured that the NDRB’s final decision will reflect sound equitable principles consistent in law, regulation, policy and discretion as promulgated by Title 10, USC, Section 1553 and set forth in Title 32, CFR, Part 724 and SECNAVINST 5420.174D.

This case is now respectfully submitted for deliberation and disposition.”

Documentation

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

Ninety-seven pages from Applicant’s service and medical records

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	860822 - 860917	COG
	Active:   USN 			860918 - 900401	HON
		   USN			900402 - 950731	HON

Period of Service Under Review:

Date of Enlistment:  950801		Date of Discharge:  001215

Length of Service (years, months, days):

	Active:    05  04  15		[Does not exclude lost time]
	Inactive:  None

Age at Entry:  29			Years Contracted:  2 (30/6 month extensions)*

Education Level:  12			AFQT:  53

Highest Rate:  MS1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.75 (4)		Behavior:  4.00 (4)		OTA:  3.70

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR (3), GCM (3), MUC, N&MCAM (3), BER, JMUC, HSM, CGMUC, CGSOR, OSR, AFOA

Days of Unauthorized Absence:  156

*Applicant extended a third time due to deserter status/lost time (EAOS/EOS: 001130).  [Extracted from Commanding Officer’s letter dated 001030]

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:

950801:	Applicant reenlisted for 2 years.

960926:	Applicant extended enlistment for 30 months.

980403:	Applicant’s blood sample tests positive for HIV antibodies.

990903:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 990830, tested positive for methamphetamine.

990909:	Letter from 759th Medical Operations Squadron, Infectious Diseases Flight, concerning prescribed and over the counter medications the Applicant was using.  [Extracted from supporting documents provided by the Applicant.]

991019:	NJP for violation of UCMJ, Article 86:  Unauthorized absence (8 das).  Article 112a:  Use of methamphetamines/amphetamines.
	All punishment suspended 6 mos.  [Extracted from Commanding Officer’s letter dated 001030.]

991019:	Applicant removed from full duty status.  [Extracted from supporting documents provided by the Applicant.]

991020:	Applicant’s NJP remitted due to adverse effects on a pending medical discharge.    [Extracted from Commanding Officer’s letter dated 001030.]

991123:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 991117, tested positive for cocaine and THC.

000123:	Applicant’s EAOS extended pending medical board discharge.

000510:	Applicant to unauthorized absence.  [Extracted from Commanding Officer’s letter dated 001030.  Comments also indicate numerous unauthorized absence between 000201 and 000509.]

000613:	Applicant from unauthorized absence.  [Extracted from Commanding Officer’s letter dated 001030.]

000615	Applicant to unauthorized absence.  [Extracted from Commanding Officer’s letter dated 001030.]

000718:	Applicant from unauthorized absence.  [Extracted from Commanding Officer’s letter dated 001030.]

000724:	Medical Narrative Summary:
	Final diagnoses:
	AXIS I: DSM IV 296.23 Major depressive disorder, single episode, Severe without psychotic features.
	AXIS II: DSM IV V71.09 No diagnosis.
	AXIS III: HIV positive.
	AXIS IV: Occupational difficulties.
	AXIS V: GAF past year = 45, GAF current = 35.  [Extracted from supporting documents provided by the applicant.]

000726:	Medical Narrative Summary of reevaluation of HIV.
	Final diagnoses:
	1. Human immunodeficiency virus associated syndrome, Walter Reed 1A
	2. Depressive disorder, on treatment.
	3. Elevated serum lipids.
	4. Ill defined subcutaneous mass L chest.
	5. Scalp follicultis, mild, possibly related to change in hair products.
	6. History of varicella zoster.
	7. History of hepatitis B by antibody serologies.
	8. History of facial trauma.
	9. History of seasonal rhinitis.
	10. History of microscopic bematuria, non-recurrent.  [Extracted from supporting documents provided by the applicant.]

000728:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 000724, tested positive for cocaine.

000809	Applicant to unauthorized absence.  [Extracted from Commanding Officer’s letter dated 001030.]

001026:	Applicant from unauthorized absence.  [Extracted from Commanding Officer’s letter dated 001030.]

001026:	Applicant notified of intended recommendation for administrative separation processing by reason of unauthorized absence periods of more than 30 days, specifically 000510-000613, 000615-000718 and 000809-001026 and wrongful use of a controlled substance specifically methamphetamine on 990825, cocaine and marijuana on 991112 and cocaine on 000718.  The least favorable characterization of service possible is under other than honorable conditions.

001026:	Applicant advised of 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.

001030:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and drug abuse.  Commanding Officer’s comments (verbatim): MS1 M_ (Applicant) tested positive for the wrongful use of methamphetamine on 25 August 1999.  He then went UA for a period of 8 days.  OIC NJP was awarded on 19 October l999 for these violations.  All punishment was suspended for 6 months.  On 20 October 1999, this OIC NJP was remitted due to adverse effects on a pending medical discharge for ICD-9-CM codes 042 and 29623.  No mandatory drug abuse ADSEP processing was initiated at this time, or when future misconduct was exhibited MS1 M_ (Applicant), because of his medical situation.  This was based upon advisement by certain personnel from NTTC Corry Station.
MS1 M_ (Applicant) tested positive for the wrongful use of cocaine and marijuana on 12 November 1999.  He then had numerous undocumented UAs for missing medical appointments and command musters.  On 23 January 2000, his EAOS was extended pending medical board discharge.  Then, between 1 February 2000 and 9 May 2000, he was UA on numerous occasions.  On 10 May 2000 he went UA and returned on 13 June 2000.  He then went UA from 15 June 2000 until 18 July 2000.  On 18 July 2000 he tested positive for wrongful use of cocaine.  He, again, went UA on 9 August 2000 and was apprehended on 26 October 2000.  Upon case review and advisement by LT C_, JAGC, USN, Chief of Naval Air Training, in September 2000, this command actively pursued ADSEP processing.
MSl M_ (Applicant) has been an enormous burden to this command and his complete disregard for good order and discipline, based on his professional performance, is evidence that he should not be allowed to continue service in the U.S.  Navy.  This command has gone far beyond that which is expected of a command in assisting a Sailor to cope with behavioral problems and significant medical situations.  It is requested that he be expeditiously separated from military service with an Other Than Honorable Discharge.

001103:	Chief of Naval Air Training directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to pattern of misconduct and drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged, in absentia, on 20001215 under other than honorable conditions for misconduct due to drug abuse (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).

Issue 1.  When the service of a member of the U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  An under other than honorable conditions discharge 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.  The Applicant’s service was marred by at least four periods of unauthorized absence totaling more than 156 days in addition to positive urinalyses for cocaine, marijuana and amphetamine/methamphetamine use. The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant contends that his problems in the Navy can be attributed to the “stress of [his] job combined with [his] illness.”  While he may feel that his employment and medical condition were the underlying causes of his misconduct, the record clearly reflects his willful misconduct and demonstrated he was unfit for further service.  The evidence of record did not show that the Applicant was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

In the Applicant’s case, the Board could discern no impropriety or inequity and therefore considered the Applicant’s discharge proper and equitable.  Specifically, the Applicant alleged that his discharge package was “tampered with” and that his supervisor lied to others about his leave status, resulting in his other than honorable discharge.  The record, however, contains no evidence of any wrongdoing by any of the Applicant’s supervisors, Chain of Command or anyone involved in his administrative separation.  The Board presumes regularity in the conduct of governmental affairs in the absence of persuasive evidence to the contrary.  As such, this Board presumed that Applicant’s discharge was regular in all respects.  Relief denied.  

Issue 2.  When reviewing a discharge, the NDRB 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.  In the Applicant’s case, the NDRB found that the Applicant’s medical diagnosis did not mitigate his misconduct.  Relief denied.

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 27, effective 27 March 2000 - 11 Feb 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 II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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

D.  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