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

FOR OFFICIAL USE ONLY

 ex-AA, USN 
Docket No. ND05-00992

Applicant’s Request

The application for discharge review was received on 20050524.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20051013.  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 and reason for discharge shall not change.  The discharge shall remain Under Other Than Honorable Conditions by reason of misconduct due to drug abuse.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“I need medical help for mental illness and medication.  I’ve been diagnosed as paranoid schizophrenia.  I have psychotic behavior and preoccupied with demons and religion.  My life is mostly secluded and I am antisocial.

I want to utilize the V.A. Medical care for mental and physical medical needs; I also am not able to work due to the mental stress I am in.  So it is very hard to generate a career for money. It (mental illness) limits me to be around people and strange places. I pray for help to get me strong.  My life is detraining. People say my behavior is bizarre.  I don’t sleep.  And at time I am aggressive but my religion keeps me hanging on.  Medication is needed.

I also have a son who needs me and financial help.  And when the time comes the burial benefits would help me and my family I believe the VA has compassion for someone like me and will treat me for my disabilities for me to live independent and help me improve.  But at this point I can not work and income is very limited.”

Applicant’s Remarks:  (Taken from the DD Form 293) “I was told the VA hospital helped my grandfather and uncles.  And my mother believes VA has everything I need.  She said I maybe able to get glasses.  I haven’t worn them since I was in the military.
I need medical and financial support to live.
VA is my last hope.  No body/place will help me.
VA has support with loans, training, concealing, clothing & automobile allowance.
Plus other thing to enhance my life.     Thank you.”

Documentation

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

Applicant’s DD Form 214
Discharge Summary from Ten Broeck Dupont Hospital, Louisville, KY, dtd October 25, 2000 (3 pages)
Comprehensive Psychiatric Evaluation from Ten Broeck Dupont Hospital, Louisville, KY, dtd October 5, 2000 (4 pages)
Psychiatric Opinion, dtd February 2, 2002 (2 pages)
Consultation/Physical Evaluation, dated October 5, 2000 (Page 1 of 7 and 7 of 7)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19950302 - 19950821	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19950822		Date of Discharge:  19970724

Length of Service (years, months, days):

	Active:    01  11  03
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:	None
	Confinement:			None

Age at Entry:  18

Years Contracted:  4

Education Level:  12				AFQT:  31

Highest Rate:  AN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (2)		Behavior:  3.00 (2)		OTA:  NA*

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal, Armed Forces Expeditionary Medal, Armed Forces Service Medal, Sea Service Deployment Ribbon

* Not Available

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events: 

960220:	NJP for violation of UCMJ, Article 86:  Absence without leave.
Violation of UCMJ, Article 91:  Insubordinate conduct toward warrant officer, non commissioned officer, or petty officer.
Violation of UCMJ, Article 92:  Failure to obey an order or regulation.
Violation of UCMJ, Article 134:  Minor in consumption of alcohol.
	Award:  Forfeiture of $200 per month for 1 month, restriction and extra duty for 14 days, withhold advancement for 6 months in lieu of reduction.  No indication of appeal in the record.

970410:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 970402, tested positive for THC.

970415:	Applicant’s statement.

970418:	NJP for violation of UCMJ, Article 112a.
	Specification:  In that AA D_ R. S_, a member of VAQ-140, on active duty, did, at or near NAS Whidbey Island, on or about 27 March 1997, wrongfully use marijuana.
	Award:  Forfeiture of $525 per month for 2 months, extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

970418:	Applicant notified of intended recommendation for discharge by reason of misconduct due to drug abuse as evidenced by COs NJP on 18 Apr 97 for violation of UCMJ Article 112a.  Applicant notified that the least favorable characterization of service possible is under other than honorable conditions 

970418:	Applicant advised of rights and having consulted with counsel, elected to appear before an Administrative Discharge Board.

970502:	Alcohol Treatment Program, Mental Health Department, Naval Hospital, Oak Harbor, Washington
	AXIS I:  No pattern of abuse or dependence.  Illegal use of THC.
	Recommendation: Weekly contact with command DAPA until completion of recommended program.  ADSEP under zero tolerance policy.

970605:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed drug abuse, that such misconduct warranted separation, and recommended discharge with an under other than honorable conditions.

970701:	Commanding Officer, Tactical Electronic Warfare Squadron 140 recommended discharge with a under other than honorable conditions by reason of drug abuse.  Commanding Officer’s comments:  “Concur with the board’s recommendation.  Airman S_ (Applicant)’s performance has always been marginal at best.  Airman S_ (Applicant) admitted to using marijuana on not one but two occasions in the past six months.  His clear disregard for the Navy’s anti-drug policies and his substandard performance offers me no choice but to recommend an other than honorable discharge.”

970703:	Commanding Officer, Naval Air Station, Whidbey Island, Oak Harbor, Washington, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

Service Record was missing elements of the Summary of Service.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19970724 by reason of misconduct due to drug abuse (A) with a service characterization of under other than honorable conditions.  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 (B and C).  The Board presumed regularity in the conduct of governmental affairs (D).

By regulation, a discharge shall be deemed proper, unless it is determined that an error of fact, law, procedure, or discretion has substantially prejudiced the rights of the Applicant.  The Applicant was discharged under other than honorable conditions by reason of misconduct due to drug abuse.  A review of the Applicant’s service record convinced the Board that a preponderance of evidence exists to support the Applicant’s basis fort separation by virtue of his NJP on 19970418 for UCMJ Article 112a, wrongful drug use.  The record further reveals that the Applicant was properly processed and notified for separation by reason of misconduct due to drug abuse on 19970418 with a least favorable characterization of under other than honorable conditions.  On the same day, the Applicant elected to appear before an administrative discharge board.  On 19970605 the administrative discharge board unanimously found that a preponderance of the evidence supported the Applicant’s misconduct and recommended separation under other than honorable conditions.  On 19970701, the Commanding Officer, Tactical Electronic Warfare Squadron 140, recommended to Commanding Officer, NAS Whidbey Island, that the Applicant be discharged under other than honorable conditions by reason of misconduct due to drug abuse.  On 19970703, the Commanding Officer, NAS Whidbey Island directed the Applicant’s discharge.  Based upon the above review, the Board unanimously concluded that the Applicant’s discharge processing was in substantial compliance with applicable statutes, rules, and regulations.  The Board could find no error of fact, law, procedure, or discretion that might afford the Applicant relief.  Thus, the Board concluded unanimously that relief is not warranted.

Regulations require that a Sailor’s characterization of service be based upon the member’s total performance of duty and conduct during the current enlistment.  Furthermore, there are circumstances where conduct or performance of duty reflected by a single adverse incident may form the basis of characterization for a Sailor’s overall service.  The incident need not result in formal punishment to be properly used to characterize a Sailor’s service.  When the service of a member of the U.S. Navy has met the standard for acceptable conduct and performance, it is appropriate to characterize that service as honorable.  An under other than honorable conditions discharge is warranted when a member's conduct involves one or more acts or omissions that constitute a significant departure from the conduct expected of members of the Naval Service.  The Applicant’s service was marred by two nonjudicial punishment proceedings for violations of UCMJ Articles 86, unauthorized absence, 91, insubordinate conduct, 92, failure to obey order or regulation, and 112a, wrongful drug use.  Such misconduct reflects the Applicant’s failure to meet the minimum standards required for an honorable discharge.  The Board concluded unanimously that relief is not warranted.

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.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 
03 Oct 96 until 11 Dec 97, Article 3630620 SEPARATION OF ENLISTED PERSONNEL 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 502, Propriety.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs.

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