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Docket No. ND99-00238

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

ex-RMSA, USN
Docket No. ND99-00238

Applicant’s Request

The application for discharge review, received 981208, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested 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 990810.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  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 – commission of a serious offense, authority:  NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.	My “OTHER THAN HONORABLE DISCHARGE IS IMPROPER BECAUSE I
DID NOT HAVE AN SUBSTANCE ABUSE PROBLEM ON ENTERING THE U.S. NAVY

2.	My OTHER THAN HONORABLE DISCHARGE IS INEQUITABLE BECAUSE I
WAS NEVER OFFERED ANY HELP FOR MY SUBSTANCE ABUSE PROBLEM DURING MY ACTIVE DUTY.

3.	My OTHER THAN HONOROABLE DISCHARGE IS IMPROPER BECAUSE
WHEN I WAS AT NJP THEY NEVER OFFERED ANY ASSISTANCE ON MY DRUG & ALCOHOL PROBLEM.

4.	My OTHER THAN HONORABLE DISCHARGE IS INEQUITABLE BECAUSE
NO ONE WAS REALLY THERE TO HELP ME NEITHER DOCTOR NOR CIVILIAN OR OFFICER GAVE ADVISE.

Documentation

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

Copy of DD Form 214.
6 pages from applicant’s service record.
Character reference from GTE dated May 11, 1998.
Copies (2) of certificates from “Professional Career Centers,” dated June 1, 1990.
Copy of certificate from “ELM FORK SECURITY OFFICERS TRAINING ACADEMY,” dated October 25, 1990.
Copy of certificate of academic excellence from “Profession Career Center,” dated march 5, 1990.
Copy of student permanent record card from “Professional Career Center,” dated 6/11/90.
Statement from the applicant, dated November 10, 1998.

PART II - SUMMARY OF SERVICE

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

	Active:   None			
	Inactive: USNR (DEP)	830726 - 831204	COG

Period of Service Under Review:

Date of Enlistment:  831205		Date of Discharge:  870827

Length of Service (years, months, days):

	Active:    03  08  23
	Inactive:  None

Age at Entry:  22			Years Contracted:  4 

Education Level:  12			AFQT:  44/29

Highest Rate:  RMSN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.50 (4)	Behavior:  3.64 (5)		OTA:  3.45

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Commission of a Serious Offense, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

831206:	Applicant briefed on Navy’s policy on drug and alcohol abuse.

851017:	NJP for violation of UCMJ, Article 112A:  Wrongful use of a controlled substance on 850916.
	Award:  Forfeiture of $361.50 per month for 2 months, extra duty for 30 days, reduction to E-2.  Reduction suspended for six months.  No indication of appeal in the record.

860124: 	Vacate reduction to E-2 awarded at CO’s NJP of 851017 due to continued misconduct.

860306:	NJP for violation of UCMJ, Article 86:  Unauthorized absence from 0645-1100, 860211.
	Award:  Forfeiture of $319  per month for 2 months, restriction and extra duty for 45 days, reduction to E-1.  No indication of appeal in the record.

860320:	Retention Warning:  Advised of deficiency (Unreliable behavior and misconduct.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 
	
870610:	NJP for violation of UCMJ, Article 134:  Drunk and disorderly on-board ship, 870510.
	Award:  Forfeiture of $360 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2.  No indication of appeal in the record.

870616:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense, and misconduct due to drug abuse as evidenced by the wrongful use of marijuana.

870617:  	Applicant advised of his 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.

870624:	Drug and alcohol abuse report:  Alcohol abuse, Jan 75 through Jun 86, 1-3 times per week, ashore, off-duty, military police, May 86.  CAAC found applicant not dependent and recommended separation, not via VA hospital.  Commanding officer recommended separation.

870626:	Drug and alcohol abuse report:  Marijuana abuse, Jan 75-Oct 85, 1-3 times per month, ashore, off-duty, urinalysis, Oct 85.  CAAC found applicant not dependent and recommended separation, not via VA hospital.  Commanding officer recommended separation.

870706:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense, and misconduct due to drug abuse as evidenced by wrongful use of marijuana.
  
870804:	CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 870827 under other than honorable conditions for misconduct due to commission of a serious offense (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).

In the applicant’s issue 1, he claims “My Other Than Honorable discharge is improper because I did not have an substance abuse problem before entering the U.S. Navy.” The Board found this not to be an issue and the claim to be without merit to warrant recharacterization of his discharge.  Documentation shows the applicant was briefed and was fully aware of the Navy’s policy on drug and alcohol abuse and the legal consequences of illicit drug use upon entering the military.  The applicant’s substance abuse problems were a result of conscious and deliberate decisions and he was held accountable for those decisions.

In the applicant’s issues 2 and 3, the Board found these issues to be without merit.  The applicant’s substance and alcohol abuse case was reviewed by proper military authority and the applicant was found not to be dependent on illegal drugs or alcohol and was recommended for separation, not through the VA hospital for treatment.

In the applicant’s issue 4, the Board found no merit in this claim.  The applicant was discharged from military service for commission of a serious offense, specifically, violation of UCMJ, Articles 112A, 86 and 134, sequentially.  After the first two violations the applicant was given a retention warning which advised him of his deficiencies, necessary corrective action, assistance available and consequences of further deficiencies.  This did not deter the applicant from further violation of the UCMJ.  After the third violation of the UCMJ, the only required advise to the applicant was of his right to counsel.

Although not raised as an issue, the following is provided for the applicant’s edification.  In addition to the service record, the NDRB is authorized to consider post-service factors in the recharacterization of a discharge (F, Part IV).  While it is true the applicant cannot go back and undo his prior mistakes, he does have the opportunity to contribute in a positive way to society and warrant clemency.  Those contributions that would be looked upon favorably by this, or any other Board, include educational pursuits, employment performance record, being a contributing member of society and making a positive impact in the community through volunteer work.  The applicant must prove that his post-service conduct has been above reproach and he is making a valid attempt to make amends for the misconduct he committed during the period of service under review.

The 15 year window during which applicants may appeal their discharges was established to allow time for establishing oneself in the community and for making these substantial, documented life style changes and community contributions.  The applicant is reminded that he remains eligible for a personal appearance hearing provided that an application is received within 15 years from the date of discharge.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560A), effective 15 Jun 87 until 
10 Jan 89, Article 3630600, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

B.  Under the Manual for Courts-martial, a punitive discharge is authorized for violation of the Uniform Code of Military Justice, Article 112A, wrongful use, possession, etc., of controlled substances and Article 134, disorderly conduct, drunkenness, if adjudged at a Special Courts-Martial.

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

E.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE.

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 obtain a copy of DoD Directive 1332.28 by writing to:

		DA Military Review Boards Agency
		Management Information and Support Directorate
		Armed Forces Reading Room
		Washington, D.C.  20310-1809

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:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		Washington Navy Yard
		720 Kennon Street SE Rm 309
		Washington, D.C.  20374-5023

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX:  A6730/A0107/A9317/A9455/A9443/A9223/A0137/A9319/A9217/A9221