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

FOR OFFICIAL USE ONLY

ex-SR, USN
Docket No. ND06-00817

Applicant’s Request

The application for discharge review was received on 20060524.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable or general (under honorable conditions).  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.  Subsequent to receiving the DD Form 293, the Applicant’s mother submitted a letter stating that she was the Applicant’s next-of-kin and a death certificate verifying the Applicant’s death on 20060531. Per SECNAVINST 5420.174C paragraph 117, if the former member is deceased or incompetent, the term “Applicant” includes the surviving spouse, next-of-kin, or legal representative who is acting on behalf of the former member.   For the purposes of this document, J_J. P_ (deceased) will be referred to as the former service member.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20070322.  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 former service member’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 by reason of misconduct due to drug abuse.

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

Equity – Stress

Equity – Post service

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the former service member and Applicant, was considered:

Former service member’ DD Form 214 (Member 4)
Former service member’s statement, undated (3 pages)
Faxed copy of a letter from former service member’s mother, dated June 14, 2006
Former service member’s certificate of death, dated May 31, 2006
Letter from K_ M_, M.D., Department of Ophthalmology, Sasebo City General Hospital, 	dated January 7, 2002 (2 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	20000921 - 20000927	COG
	Active:    None

Period of Service Under Review:

Date of Enlistment:  20000928		Date of Discharge:  20020207

Length of Service (years, months, days):

	Active:    01  04  10  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):  

	Unauthorized absence:  8 days
	Confinement:		  None

Age at Entry:  25

Years Contracted:  4

Education Level:  12				AFQT:  44

Highest Rate:  SR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  1.0 (1)			Behavior:  1.0 (1)		OTA:  1.33

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  None

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

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

Chronological Listing of Significant Service Events: 

010410:	Former service member failed to report before 1300 for appointment given to him by Naval Hospital Yokuska.

010417:	DD 553 and deserter message issued this date.

010511:	Medical evaluation at SASEBO Branch Medical Clinic.
	S: Former service member called at 1100 saying “I just feel all nuts; I get these panic attacks and can’t breathe.”  Former service member calmed down easily on the phone with verbal reassurance.  Had seen FSC counselor 2 hours earlier.  Former service member contracted verbally that he would not hurt himself or anyone else “so long as no one pushes my buttons.”

010516:	Medical evaluation at SASEBO Branch Medical Clinic
	S: Referred to clinic for making vague comments regarding suicide.  States he has strong aversion to joining his ship tomorrow upon its return to port.  States he has panic attacks in anticipation of ship’s return.  States he is harassed and tormented by crewmates on ship.  Does not know reason for harassment.  Denies physical abuse or assault by shipmates.  Denies suicidal or homicidal thoughts.  States panic attacks have been reduced in frequency and intensity since starting PAXIL.

010518:	Medical evaluation at USS SAFEGUARD (ARS-50).
	S: To sick bay after telling HM3 S_ that he would kill himself if he did not get off the ship.  Former service member denies suicidal or homicidal thoughts at this time.  
	Assessment: Depression/Anxiety.
	Plan: Occupy himself with positive activity; continue prescribed meds; follow up if suicidal or homicidal thoughts occur.

010601:	NJP for violation of UCMJ, Article 85: Desertion.
Violation of UCMJ, Article 91: Insubordinate conduct.
Violation of UCMJ, Article 92: Failure to obey order.
Violation of UCMJ, Article 87: Missing movement.
	Award:  Forfeiture of ½ months pay for 2 months, restriction for 60 days, reduction to E-1.  No indication of appeal in the record.

010816:	Former service member undergoes Competence for Duty Exam.  Former service member is not competent to perform duty due to drugs or alcohol, admitted to sicklist.  

010823:	NJP for violation of UCMJ, Article 128: Assault.
Violation of UCMJ, Article 134: Drunk and disorderly.
Violation of UCMJ, Article 92 (2 specs):
Specification 1: Failure to obey order or regulation.
Specification 2: Dereliction in the performance of duties.
Violation of UCMJ, Article 91: Insubordinate conduct.
Violation of UCMJ, Article 86: Absence without leave.
	Award:  Forfeiture of ½ months pay for 2 months, correctional custody for 30 days.  No indication of appeal in the record.  [Extracted from Commanding Officer’s letter dated 011220.]

011005:	U.S. Naval Hospital Yokosuka, Branch Medical Clinic Sasebo, Japan.  Former service member referred for substance abuse assessment as a command concern for returning to the ship while intoxicated.  
	Assessment:  Former service member does not appear to meet the DSM IV criteria for Alcohol Abuse.  The following traits/characteristics are noted: use interferes with responsibilities.  Former service member states that he has been counseled on at least 5 occasions in the last 10 months for being intoxicated or recovering from intoxication shortly after starting work.  Amenable to treatment.
	Plan: ASAM Level 2.0 abuse.

011116:	Alcohol Treatment Summary U.S. Naval Hospital, Yokosuka, Japan.  Former service member enrolled in treatment for Alcohol abuse.  Successfully completed and commenced from treatment.  

011116:	Alcohol Programs Department USNH Yokosuka, Japan, Discharge Note:  Former service member was released from ASAM Level 2.0 Intensive Outpatient Treatment for Alcohol Abuse having successfully completed treatment.  The former service member was placed in Level one as part of his Continued Care program.   

011210:	NAVDRUGLAB, San Diego, VA, reported former service member’s urine sample, received 011203, tested positive for THC.

011219:	Former service member notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable by reason of misconduct due to drug abuse.

011219:	Former service member advised of rights and having consulted with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

011220:	Commanding Officer, USS SAFEGUARD (ARS-50) recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  Commanding Officer’s comments:  “Prior to testing positive on the urinalysis, SR P_ (former service member) had a long documented history of misconduct aboard USS SAFEGUARD.  This last incident of drug abuse is the last and most severe characterization that he is unfit for further service in the U. S. Navy.  I strongly recommend that SR P_ be separated from the naval service by reason of misconduct due to drug abuse, and that his character of service be Under Other Than Honorable.”

020103:	COMPHIBGRU ONE directed the former service member’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 former service member was discharged on 20020207 by reason of misconduct due to drug abuse (A and B) with a service characterization of under other than honorable conditions.  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 (C and D).

Equity – Stress:  The former service member contends that his discharge should be upgraded because he went into depression, tried to kill himself, and totally lost control after two close friends were killed.

While the former service member may feel that his stressful situation was underlying cause 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 former service member was either not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

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 former service member’s service was marred by 2 nonjudicial punishment proceedings for violations of Articles 85, 91, 92, 87, 128, and 134 of the UCMJ.  In addition, there is credible evidence in the record that the former service member 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. Violations of all of the above UCMJ Articles are considered serious offenses for which a punitive discharge is authorized. The former service member’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.

Equity – Post service:  In a letter attached to the DD Form 293, the Applicant states that he has a good job.

Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  As of this time, the former service member has not provided sufficient post-service documentation to consider mitigating the misconduct that resulted in the characterization of discharge.  Relief denied.

The former service member remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The former service member’s representative may appear on his behalf and provide documentation to support any claims of post-service accomplishments or any additional evidence related to this discharge.  

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 33, effective 16 Jul 2001 until 21 Aug 2002, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - Drug Abuse.

B.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Articles 85 (Desertion), 87 (Missing movement), 91 (Insubordinate conduct toward warrant, noncommissioned, petty officer), 92 (Failure to obey order, regulation), and 112a (wrongful use, possession, etc, of a controlled substance), 128 (Assault) and 134 (Drunk and disorderly).
	
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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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