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

  ex-HM3, USN
Docket No. ND05-00225

Applicant’s Request

The application for discharge review was received on 20041119.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20050316.  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.  “Dear Sir:
My main reason for joining the Navy, was to serve my country, follow the footsteps of my uncle, whom I always admired in his Navy Uniform, since I was a small child, also, to become one of the best Hospital Corpsman, take pride in wearing those dress blues, and learn discipline.

My duties were: Naval Hospital Groton Connecticut (Medical Surgical Ward, Preventive Medicine), USS Comte De Grasse (DD974)…only Corpsman on ship with IDC: sickcall, flight quarters, immunizations, battle dressing station, supply, etc.  Naval Hospital Jacksonville, Florida: Professional Afffairs/Credentials, Naval School of Health Sciences, San Diego, California: C-School(Ocular Technician), Naval Hospital San Diego, California: Surgical Tech (Ophthalmology Clinic), LPO, Surgical Supervisor.  During my duties, I received three good conduct medals, letter of commendation, sea service, made second-class, re-enlisted three times.

Boot camp was in Great-Lakes, which I enjoyed very much.  I was thirty -six years old, and performed very well in my company.  I was looked up to as the old-man, because of joining at such a late age.  My first duty station was great, worked on the surgical ward, and in preventive medicine, afterward, ask for duty on a ship, so that I could travel, made third-class on my ship(destroyer), out of Norfolk, Va.  Then, to Jacksonville(Air-Station, was the only one in my cycle, to make second class(1993), also get Letter of Accommodation at Naval Hospital, Jacksonville, Florida.  From there, to “C”- school, where I was class adjunctant.

Later, after C-school, received orders to Naval Hospital San Diego; California,
Ophthalmology Clinic, where I made ocular technician of the quarter, Surgical
Supervisor, and LPO of the Ophthalmology Clinic(Balboa Hospital).

My discharge OTH, was awarded, after the Chiefs board, followed by Captain’s Mast.  I was never offered the proper rehabilitation that the Navy can provide, especially to a sailor, who has three honorable discharges, and fourteen years service.  I was told that “we cannot help a sailor with a drug problem, only help, is for alcoholism.”

I believe that my drug problems were induced by other sailors at my command that were using drugs, and inviting me to parties, where there was a lot of drinking, drugs, and women.  I don’t blame anyone for my actions, but sometimes, things happen, due to stress from work, loneliness from being away from home so much, and duties in the Persian Gulf War., and during War times.

There was no discharge hearing (board), no lawyers, only a very poor, quick interview with the command alcohol screener.  I was in such a shock from all of this, positive urinalysis for drugs, I could hardly concentrate on anything that the alcohol counselor was trying to explain to me at the time.

I was never offered, or ordered to go to a rehab, which could have really helped me, and saved my career.  I eventually, put myself into a rehabilitation program, at Vietnam Veterans of San Diego (Paific Highway) rehabilitation center, in which I completed, and graduated from(certificate enclosed).  No was no discharge request, they just released me after my time was done in restrictions.  I was so disillusioned and afraid, that I almost lost my mind.  No one helped me with my drug problem, or my mental state of being, at the time, no one seemed to care.

The command master chief warned me about the effects of a less than honorable discharge, but I was so mixed up, that I could not comprehend anything at the time.  All that I could do, was just try to hold on to my sanity, not knowing where I was going, or what I was going to do, facing a discharge after fourteen years in the Navy, and living in a city, with no relatives or family, to maybe help me through all of this.

I was separated for a positive urinalysis, for cocaine, in the year 2000, and I really hate cocaine, but it was at one of those parties, and I almost feel like someone set me up, because the very time that I did it, I was called in he very next work day for a urinalysis test.

I have heard rumors that bad discharges change after some time, but I’ve never seen it in writing.

After serving my country for fourteen years, (three honorable discharges, and four re-enlistments), I believe that I should have been sent (wit orders) to a rehabilitation program, as opposed to taking my rank, and an OTH discharge.  I have received letters of accommodation, three good conduct metals, and served on a Destroyer in the Persian Gulf War, and always having 4.0 evaluation marks, only to miss the First Class Exam, by 2 points.

The effects of my discharge caused me to lose my Navy Career, loose my home, became homeless in San Diego, lost my self-esteem, and was mentally drained, along with severe depression, and loneliness, in a big city, without any family.

But I eventually got into the rehab that I mentioned earlier in this later, by the grace of God, and have been able to pull my life back together.  I’m now working at the Veterans Hospital in LaJolla, California.

The gains of having my discharge upgraded, would be: pride, feeling of self-worth from my Navy career, seeing my father not be so disappointed, along with my mother and daughter, not seeing my benefits go down the drain, such as, VA benefits, and my college (Montgomery G.I.  bill), and my retirement years restored after fourteen years of service.  As of nmow, I can’t even use the VA Hospital if I become sick, or even the use the Commisary for purchasing food.”

Additional issues submitted by Applicant’s counsel/representative (Veterans of Foreign Wars):

“1. Propriety and Equity Issue(s):  The applicant was a model Petty Officer prior to his involvement with narcotics and his discharge should be upgraded. 

Statement:  In accordance with 32 CFR § 724, and SECNAVINST 5420.174D, the Veterans of Foreign Wars submits to the Naval Discharge Review Board (NDRB) the above issue and following statement in supplement to the Applicant’s petition.

The applicant served the Navy for more than 13 years prior to his involvement with cocaine and the subsequent adverse impact this addiction had on his performance.  The applicant had excellent marks on his evaluation reports and was a top performer.  The applicant was never offered rehabilitation by the Navy prior to his separation for misconduct due to drug abuse.  The applicant has turned his life around since his separation, and completed a drug and alcohol rehabilitation program sponsored by the Vietnam Veterans of America.   

The Veterans of Foreign Wars’ 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 § 1553, and set forth in 32 CFR § 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:

Certificate of Completion, Phase I Transition, Vietnam Veterans of San Diego, dated 07 Jul 2003
Certificate of Completion, Progress in Recovery, Vietnam Veterans of San Diego, dated 07 Jul 2003
Certificate of Completion, Recovery Program, Vietnam Veterans of San Diego, dated 12 Jan 2004
Letter from Veterans Rehabilitation Center, dated 14 Aug 2003
Congratulations Note, RE: One Year Clean, dated 08 Mar 2004 (2 copies)
Request for Personnel Action, dated 10 Jun 2004
Transcript, Department of the Navy, dated 07 Aug 2003
Academic Record, Department of the Navy
Occupational Competencies, dated 27 May 2004 (2 pages) (2 copies)
Applicant’s DD Form 214
Occupational Training Course Certificate, Ophthalmic Medical Assisting II, dated 20 May 2004
Performance Appraisal, dated 08 Nov 2004

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	860401 - 860526	COG
	Active:   USN			860527 - 900715	HON
					900716 - 950525	HON
950526 - 990513	HON

Period of Service Under Review:

Date of Enlistment:  990514		Date of Discharge:  000725

Length of Service (years, months, days):

	Active:    01  02  11
	Inactive:  None

Age at Entry:  47			Years Contracted:  4

Education Level:  12			AFQT:  50

Highest Rate:  HM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.50 (2)		Behavior:  2.50 (2)		OTA:  3.22

Military Decorations:  NAM

Unit/Campaign/Service Awards:  AFEM, NER, SSDR, NDSM, GCM (3), MUC (2), Letter of Commendation

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:

000514:	Applicant reenlisted in the United States Navy for four years.

000717:	NJP for violation of UCMJ, Article 112a:  Wrongfully use cocaine, violation of UCMJ, Article 134:  Incapacitated for proper performance of duty as a result of previous overindulgence in intoxicating liquor or drugs.
	Award:  Forfeiture of $778.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-4.  No indication of appeal in the record.

000718:	Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse.  The Applicant was notified that if separation is approved the least favorable characterization of service is under other than honorable conditions.

000718:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

000804:	Commander, Naval Medical Center, San Diego, directed the Applicant’s discharge under other than honorable conditions by reason of misconduct due to drug abuse.

Complete discharge package unavailable

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000725 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:  Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question.  No such impropriety or inequity is evident during the Applicant’s enlistment.  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.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  The Board found no indication in the record that the Applicant was inequitably or improperly denied treatment for his drug abuse.  The Applicant’s allegations, that he was denied assistance and counseling for his personal problems, do not refute the presumption of regularity in this case.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

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 naval service.  The NDRB 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.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided sufficient documentation for the Board to consider.  Relief denied.

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 and this issue does not serve to provide a foundation upon which the Board can grant relief.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  

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 additional documentation to support any claims of post-service accomplishments or any other evidence related to his 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), 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