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

ex-RM1, USN
Docket No. ND99-00404

Applicant’s Request

The application for discharge review, received 990127, requested that the characterization of service on the discharge be changed to General/under Honorable conditions.  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 991206.  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 – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.  Discharged in absentia.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  My other than honorable discharge was inequitable because at the time of my asking the Navy for help with my alcohol & drug problem, inpatient care or treatment was needed, but no bed was available and I was asked to hold on until a bed was available.  I was sent to one on one counseling with Cdr C_, who also recommended Level III (inpatient counseling) treatment.

2.  I believe it was, my other than honorable, was improper because in accordance with Document 6, the administrative board voted to suspend the discharge of general (para. g) and to send me to Level III treatment, again Level III treatment was not available upon me asking for help. 

3.  Had Level III treatment been made available upon my request or soon after, I would probably still be in the Navy as of the this day, as it was my career.  As evident after my sucessful completion of Level III after my discharge from the Navy.  Documents #4, & #5.  VA hospital over 30 days of inpatient treatment, followed by 90 days of aftercare at a live-in transitional house.

4.  The Navy (NAVCAMSLANT, Norfolk) saw something in me that they wanted, but they wasnt willing to go the full mile to see me get free, I feel that they had started something in deciding to keep me originally then when I continue to use drugs & alcohol, they decided to punish me, but I was still the same person who they decided to keep as a E6, suspend discharge pending Level III treatment, the only difference was I still needed help.  Documents #1, #2 & #3 are all character references, I have been clean and sober since 2/4/90.  I dont blame the Navy, and I hold no hard feelings, much has been revealed since, in regards to alcoholism and drug addiction treatment.  No one regrets the events that happened in my life more than I do, I feel that if a General Discharge under Honorable Conditions would be granted, then it would finally closed that door of my life so I could move.  Heal that last little ache in my heart over what that mess took from me.  Please consider. 

Documentation

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

Character/job reference dated January 8, 1999
Character reference dated January 11, 1999
Character reference dated January 11, 1999
Character reference dated January 11, 1999
Letter from Transitions dated October 16, 1996
Copy of discharge summary sheet
Two pages from applicant's service record
Copy of DD Form 214 (prior service and current separation (2))

PART II - SUMMARY OF SERVICE

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

	Active:   USN			810519 - 840517	HON
	Inactive:  USNR (DEP)	801024 - 810518	COG

Period of Service Under Review:

Date of Enlistment:  840518		Date of Discharge:  900129

Length of Service (years, months, days):

	Active:    05  08  12
	Inactive:  None

Age at Entry:  23			Years Contracted:  6

Education Level:  12			AFQT:  21

Highest Rate:  RM1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.92 (5)	Behavior:  3.57 (7)		OTA:  3.80

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM, CGSOS, OSR (2)

Days of Unauthorized Absence:  55 

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT – Drug abuse (Use), authority:  NAVMILPERSMAN, Article 3630620.  Discharged in absentia.

Chronological Listing of Significant Service Events:

881230:	NJP for violation of UCMJ, Article 86 (2 specs): (1) Unauthorized absence from 1545, 5Nov88 to 1130, 8Nov88, (2) Unauthorized absence from 0745, 16Nov88 to 1500, 20Nov88, violation of UCMJ Article 112A: Wrongfully use cocaine on 19Nov88 until 29Nov88.
	Award:  Forfeiture of $588 per month for 1 months, reduction to E-5.  Reduction suspended for 6 months.  No indication of appeal in the record.

890302:	Applicant to UA 0745, 890302.

890314:	Vacate suspended reduction to RM2 awarded at CO's NJP dated 30Dec88 due to continued misconduct.

890316:	Applicant from UA 0745, 890316 (14 days, surrendered).

890331:	NAVHOSP Portsmouth, VA: VA bed designation.  Applicant diagnosed as cocaine dependent.

890407:	Drug and Alcohol Abuse Report: Cocaine abuse, 4 to 7 times per week, ashore off duty, self referral/disclosure 8Nov88.  Evaluation found applicant dependent and recommended separate via VA hospital.  Clinical psychologist found applicant dependent.  Commanding Officer recommended separate via VA hospital.  Previous disciplinary history: Administrative board for self-referral of cocaine addiction.  Recommendation:  Administrative separation (suspended for six months).  This suspension was vacated when service member went UA for 14 days.  Comments:  Not considered to have potential for future naval service, have requested bed via the VA.

890608:	Applicant to UA 0745, 890608.

890609:	Applicant from UA 0815, 890609 (1 day/surrendered).

890612:	Applicant to UA 0745, 890612.

890613:	Applicant from UA 0811, 890613 (surrendered).

890717:	Applicant declared a deserter.  UA since 0745, 890616.

890719:	Applicant from UA 1017, 890719.

890728:	NAVDRUGLAB Norfolk, VA, reported applicant’s urine sample, received 890720, tested positive for cocaine.

890918:	Special Court-Martial.
	Charge I: violation of the UCMJ, Article 86 (3 Specifications):
	Specification 1: Unauthorized absence from 0745, 2Mar89 to 0745, 16Mar89 (14 days/surrendered).
	Specification 2: Unauthorized absence from 0745, 12Jun89 to 0811, 13Jun89 (1 day/surrendered).
	Specification 3: Unauthorized absence from 0745, 16Jun89 to 1230, 19Jul89 (33 days/surrendered).
	Findings:  to Charge I and specification 1-3 thereunder, guilty.  
	Sentence:  Fine of $400.00 for 2 months, restriction for 60 days, reduction to RMSN.
	CA 891026: Sentence approved and ordered executed.
	
890926:	Drug and Alcohol Abuse Report: Cocaine abuse, 4 to 7 times per week, ashore off duty, self referral/disclosure 8Nov88.  Clinical psychologist found applicant dependent and recommended Level III treatment.  Commanding officer recommended separation via VA hospital.

891102:	NAVDRUGLAB Norfolk, VA, reported applicant’s urine sample, received 891024, tested positive for cocaine.

891107:	VA bed request for applicant due to cocaine dependency.

891113:	Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of Misconduct due to Drug abuse as evidenced by the use of cocaine and Misconduct due to Commission of a Serious Offense as evidenced by your service record.

891113:  	Applicant advised of his rights and having consulted 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 and to submit a statement.

891120:	Applicant's statement.

891229:	Commanding officer recommended discharge under Other Than Honorable conditions by reason of Misconduct due to Drug abuse (Use) and Commission of a Serious Offense.  Commanding officer’s comments: (verbatim): There are people who convince you that they deserve a second chance.  Seaman (applicant) was such a person; however from 9 Nov 88 to 30 Dec 88 she consistently refused command attempts to expeditiously process the legal and administrative aspects of her case and thereby prevented her timely admission into a treatment program.  While awaiting a recommendation on retention from NMPC, she was given every opportunity to use the assets of the Naval Hospital Portsmouth.  Additionally at my direction, she was not placed in a urinalysis program in an effort to keep her eligible for retention and admission into a treatment program.  Nevertheless, just prior to COMNAVMILPERSCOM WASHINGTON DC 091059Z MAR 89, Seaman (applicant) went UA.  Since then she has tested positive on two command directed urinalysis.  Seaman (applicant) has continuously used and abused the Navy legal system and this command.  She was well aware of what was expected of her as the Navy attempted to help in her fight against drugs.  She has refused to help herself, unless it suited her at the time.  She was fully aware of Navy regulations but chose to violate them repeatedly.  Now, she must fact the consequences of her actions.  I recommend that she be discharged under other than honorable conditions, and that she be ineligible for enlistment in any branch of the armed forces.

900118:	CNMPC directed the applicant's discharge under Other Than Honorable conditions by reason of Misconduct due to Drug abuse (Use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 900129 under Other Than Honorable conditions for Misconduct due to Drug abuse (Use) (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, the Board determined this issue is without merit.  The applicant states her OTH was inequitable because she was unable to get inpatient Level III care due to unavailability of a bed.  After being diagnosed as drug dependent, the applicant was to be separated through the VA hospital, for drug treatment.  An Admin Separation Board voted unanimously to suspend her discharge for six months following successful completion of Level III treatment.  In the interim, the applicant was receiving one-on-one drug counseling.  COMNAVMILPERSCOM message, dated 9 MAR 89, issued a counseling/retention warning, while the applicant was awaiting space for inpatient drug treatment but the applicant violated the retention warning by going UA from 2-16 March 89.  COMNAVMILPERSCOM subsequently directed the applicant’s discharge.  Additionally, the applicant failed two follow-on drug tests, went UA on three occasions (14 days, 1 day and 33 days) and had a Special courts-martial prior to her discharge.  She was discharged in absentia  [Extracted from COMNAVMILPERSCOM message dated 191936Z APR 89].  The discharge was proper and equitable.  Relief denied.

In the applicant’s issue 2, the Board determined this issue is without merit.  The applicant’s discharge was to be suspended for six months following successful completion of Level III treatment.  While waiting for an inpatient bed, to enroll in Level III, she went UA, violating the retention warning issued by COMNAVMILPERSCOM in there message dated 191936Z APR 89.  She continued to violate the UCMJ by going UA on two additional occasions  (one UA period was for 33 days) and failing two additional drug tests.  The applicant’s discharge was proper and equitable.  Relief denied.

In the applicant’s issue 3, the Board determined this issue is without merit.  The applicant claims she would still be in the Navy if she had the opportunity to attend and complete Level III treatment.  The command requested inpatient Level III space for the applicant but it was unavailable.  In the interim, the applicant was participating in one-on-one drug counseling with a medical doctor.  The counseling was unsuccessful in preventing the applicant from continued drug use.  Additionally, she went UA on two separate occasions for less than 30 days and was declared a deserter on a third occasions.  The applicant received Level III treatment following her discharge, in accordance with Navy regulations for drug dependent members.  The discharge was proper and equitable.  Relief denied.

In the applicant’s issue 4, the Board determined this issue is without merit.  The applicant’s service, prior to her misconduct, was honorable.  Additionally, she was given an opportunity to remain on active duty following her first drug conviction.  Her continued misconduct, following the first drug conviction (including two separate drug abuse convictions, two UA periods less than 30 days and declaration as a deserter), demonstrate that she did not deserve to remain in the Navy.  The severity of her misconduct warrants an Other Than Honorable discharge.  Relief denied.

The following is provided for the applicant’s edification.  There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time or good conduct in civilian life, subsequent to leaving military service.  The Board reviews the propriety (did the Navy follow its own rules in processing the applicant for discharge) and equity (did the applicant receive a discharge characterization in keeping with Navy guidance or was the characterization typical of other service members being separated for the same reason) of each applicant’s discharge.  This applicant’s discharge was proper and equitable.  Additionally, the NDRB is authorized to award clemency for post-service factors (what has the applicant done since discharge to become a contributing member of his/her community and to society in general).  Those factors include but are not limited to the following:  Evidence of continuing educational pursuits (transcripts, diploma, degree or vocational-technical certificates), a verifiable employment history (letter of recommendation from employer), documentation of community service (letter from activity/community group), certificate of non-involvement with civil authorities (police records check) and proof of not using drugs (detoxification certificate).  The applicant has provided some documentation of good character and conduct but not sufficient enough to warrant an upgrade to her discharge, based on the document review.  The applicant is encourage to continue her efforts to establish a reputation of good character.  She is also reminded that she remains eligible for and is strongly encouraged to schedule a personal appearance hearing.  Documentation to support any claims of good character are a must.  An application must be received by the NDRB within fifteen years from the date of her discharge or it will be denied.  It is advisable to have legal representation at the hearing.

Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560A), Change 6, effective 11 Jan 89 until 13 Jun 90, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO DRUG ABUSE

B.  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.  
C.  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.

D.  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