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

ex-SR, USNR
Docket No. ND00-00062
 
Applicant’s Request

The application for discharge review, received 001013, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a personal appearance hearing before the traveling panel closest to (left blank).  The applicant listed a civilian counsel as his representative on the DD Form 293.  Subsequent to the application, the applicant converted to a documentary discharge review and obtained representation from the Disabled American Veterans.

Decision

A documentary discharge review was conducted in Washington, D.C. on 001026.  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.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  The "Under Other Than Honorable Conditions" discharge I received from the Navy was inappropriate under the circumstances.  I had an as yet undiagnosed illness which warrants a medical discharge.  At the time of my discharge in 1984, I suffered from Bipolar Affective Disorder also known as Manic Depression.  This condition was not diagnosed until 1992.  After being diagnosed, I began taking strong prescription medications and my Bipolar Disorder is now stabilized.

I have family and am a very productive member of my community and society.

In view of the above revelations, I respectfully request that my discharge be upgraded to "General/Under honorable conditions".

Thanking you in advance for your consideration of my request.

2.  After a review of the Former Service Members (FSM) DD Form 293 Application for the Review of Discharge or Dismissal from the Armed Forces of the United States and all of the evidence assembled for review, we continue to note the contentions as set forth by the appellant of a request for the upgrade of his Other Than Honorable discharge to a discharge reflecting General, Under Honorable Conditions.

An immediate review of the record shows the FSM to have served from June 22, 1983 to October 19, 1984, at which time he received a discharge of Under Other Than Honorable Conditions.  Currently, Mr. (applicant)k is married, attends church regularly and actively, is also attending the Heald's School of Technology.  Further noted is the fact that although his attendance was postponed during the third semester, due, to illness that is now back in school resuming a leadership role, creating a positive influence in class and the school.

Although within the record, it notes that the FSM's chain of command recommended he be referred to counseling and rehabilitation.  There is no evidence of record to support the conclusion that this recommendation was actually pursued as it should have been, which we believe is an impropriety.

If proper medical counseling and rehabilitation had been instituted not only should the drug abuse been quelled, but an evaluation by a psychologist would have, in all likely hood, revealed the presence of the FSM's psychiatric disorder that was impairing his judgment.

But again, due to an impropriety of the actions by his chain of command, a proper referral was never accomplished, and therefore the drug abuse / inappropriate behavior was inadvertently allowed to continue,

The point this service is trying to make is that if you look at FSM (applicant's) history, once the drug abuse was put into remission, via medical professionals, the extent of his psychiatric disability was discovered and properly treated, Since that treatment Mr. (applicant) is and has taken, enforced, and continued.  If the Naval Command, at the time of the offenses had maintained a proper course of action, Mr. (applicant) would have undoubtedly been a top student / trainee and an asset to the Navy.
To stress the point of an impropriety a little further, the medical records reflect that while aboard ship, Mr. (applicant) suffered and received treatment for a proposed anxiety reaction.  But no referral for a proper psychiatric consult was ever considered or is of record.  This being needed to ascertain if the problem is acute or potentially chronic.

Under today's standards, utilization of the probation and rehabilitation program has served to ease the issuance of punitive and / or harsh discharges in those cases where the offense committed was not extreme and the member's service could have been salvaged in the best interest of the service.

We believe the applicant has been adequately punished for his offenses against the good order and discipline of the military service.  To continue to impose the burden of an Under Other Than Honorable discharge for the relatively minor infractions he committed while in service would be unduly harsh and therefore create an injustice.

Mr. (applicant) is making a fine effort to improve his position in life and he should be encouraged in his endeavor to attain such status.  In order to assist him, the Board will need to determine that his discharge should be changed to one less severe.

Therefore due to considered improprieties by the past Naval Command, and the FSM's outstanding efforts to change, as mentioned by the multiple statements of record from family, friends and neighbors, attesting that he is a productive member of society, we request that clemency be utilized.  It is our belief that FSM (applicant) has suffered the effects of his current discharge long enough.

It is the desire of this service that the Board provide equitable relief to FSM (applicant) and upgrade his discharge to a General, Under Honorable Conditions, with reflection towards considered improprieties, and consideration to equity and clemency.

We ask for the boards careful and sympathetic consideration of all the evidence of record used in rendering a fair and impartial decision.  These issues do not supersede any issues previously submitted by the applicant.

Documentation

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

Letter from the executive director of American Remnant Mission dated August 9, 1999
Statement from applicant's brother dated June 21, 1999
Statement from applicant's mother in law dated August 12, 1999
Character reference dated August 9, 1999
Letter from a psychiatry dated August 25, 1999
Letter from applicant's wife dated August 20, 1999
Letter from applicant's parents dated August 8, 1999
Letter from applicant's doctor dated September 3, 1999
Character reference, undated
Copy of Dean's Award for Winter 1999
Copy of Dean's Award for Fall 1998
Copy of DD Form 214 (2 copies)
Thirty-six pages from applicant's service record
Letter to applicant's mother from a doctor dated May 15, 1998
Statement from applicant dated November 1, 1999
Copy psychiatric records from White Memorial Hospital
Statement from doctor dated October 4, 2000

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: None

Period of Service Under Review:

Date of Enlistment:  820622		Date of Discharge:  841019

Length of Service (years, months, days):

	Active:    01  03  28
	Inactive:  None

Age at Entry:  18			Years Contracted:  8

Education Level:  12			AFQT:  44

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.00 (2)	Behavior:  2.00 (2)		OTA:  2.00

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 – Drug abuse (Use), authority:  NAVMILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events:

820622:	Applicant signed USN Drug Abuse Certificate.

830622:	Applicant ordered to active duty for 36 months in the Active Mariner Program.

830624:	Applicant signed USN Drug Abuse Statement of Understanding.

840223:	NJP for violation of UCMJ, Article 134: Wrongful use of marijuana, 15Dec83-10Jan84.
	Award: Forfeiture of $325 per month for 1 month, correctional custody for 30 days, reduction to SR.  Reduction suspended for 90 days.  No indication of appeal in the record.

840327:	Applicant counseled on Navy policy on drug and alcohol abuse.

840402:	Substance Abuse Report:  Marijuana abuse, less than monthly April 1979 to December 1983, ashore off duty.  Urinalysis January 1984.  SAC found applicant not dependent and recommended Level I treatment.  Commanding officer recommended retention and refer to Level I treatment.  Comments: SNM is awaiting reclassification after being declared ineligible for security clearance required to attend CTT Class "A" school.  He has expressed strong motivation for continued naval service and support for the Navy's program against drug abuse.  One NJP.

840803:	NJP for violation of UCMJ, Article 92: Violate a lawful general regulation, violation of UCMJ Article 134: Wrongfully use of a controlled substance.
	Award: Forfeiture of $298 per month for 2 month, restriction and extra duty for 45 days, reduction to SR.  No indication of appeal in the record.

840814:	Substance Abuse Report:  Marijuana possession less than monthly.  Law enforcement August 1984.  SAC found applicant not dependent and recommended separate from service not via VA hospital.  Commanding officer recommended separate.  Comments: SNM had previous offense of use March 1984.  Member was counseled at that time.  Member received NJP 2 August 1984.  SNM being processed for administrative discharge.

840905:	Medical evaluation for drug abuse found the applicant to have a severe drug and alcohol problem.  Recommend refer to the Alcohol Rehabilitation Center (ARC) for treatment.  

840920:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

840920:	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.

840920:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). 

841016:	CNMPC directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

841019:	Applicant offered in patient treatment for drug and alcohol dependency declined VA treatment.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 841019 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).

The applicant’s first issue states: “The "Under Other Than Honorable Conditions" discharge I received from the Navy was inappropriate under the circumstances.  I had an as yet undiagnosed illness which warrants a medical discharge.  At the time of my discharge in 1984, I suffered from Bipolar Affective Disorder also known as Manic Depression.  This condition was not diagnosed until 1992.  After being diagnosed, I began taking strong prescription medications and my Bipolar Disorder is now stabilized.”  Although the applicant believes his undiagnosed illness is sufficient reason to mitigate his misconduct, the NDRB found nothing in the record to support the allegation that he was not responsible for his actions.  Further, the NDRB found that the applicant’s discharge for misconduct was in fact appropriate.  There is nothing in the applicant’s record to support a medical discharge.  Relief is not warranted.

Additionally, the applicant’s first issue states:  “I have family and am a very productive member of my community and society.  In view of the above revelations, I respectfully request that my discharge be upgraded to "General/Under honorable conditions".”  The NDRB is authorized to consider post-service factors in the re characterization of a discharge.  The applicant must be aware that 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, may be considered by the NDRB.  The NDRB did not find the applicant warranted a discharge based on his post service documentation. 

The applicant’s second issue states:  “Although within the record, it notes that the FSM's chain of command recommended he be referred to counseling and rehabilitation.  There is no evidence of record to support the conclusion that this recommendation was actually pursued as it should have been, which we believe is an impropriety.”  The NDRB found the applicant was offered in patient drug treatment but declined assistance.  There was no impropriety in the discharge.  Relief based on this issue is not warranted.

The applicant’s third issue states:  “If proper medical counseling and rehabilitation had been instituted not only should the drug abuse been quelled, but an evaluation by a psychologist would have, in all likely hood, revealed the presence of the FSM's psychiatric disorder that was impairing his judgment.”  The applicant was given opportunities to correct his deficiencies, but he continued with his misconduct.  The applicant refused treatment for drug problems.  The applicant was seen by competent medical authority who recommended treatment, but the applicant refused.  Relief is not warranted.

The applicant’s fourth issue states:  “But again, due to an impropriety of the actions by his chain of command, a proper referral was never accomplished, and therefore the drug abuse / inappropriate behavior was inadvertently allowed to continue.”  The applicant was seen by drug and alcohol abuse counselors and by a medical doctor.  The applicant was unwilling to participate in an inpatient program.  The NDRB found the applicant’s chain of command took appropriate measures to provide the applicant with help.  The record shows the applicant was not willing to take the help that was offered.  The NDRB found no impropriety in the applicant’s discharge.  Relief is denied.

The applicant’s fifth issue states:  “The point this service is trying to make is that if you look at FSM (applicant's) history, once the drug abuse was put into remission, via medical professionals, the extent of his psychiatric disability was discovered and properly treated, Since that treatment Mr. (applicant) is and has taken, enforced, and continued.  If the Naval Command, at the time of the offenses had maintained a proper course of action, Mr. (applicant) would have undoubtedly been a top student / trainee and an asset to the Navy.  To stress the point of an impropriety a little further, the medical records reflect that while aboard ship, Mr. (applicant) suffered and received treatment for a proposed anxiety reaction.  But no referral for a proper psychiatric consult was ever considered or is of record.  This being needed to ascertain if the problem is acute or potentially chronic.”  The NDRB found the applicant was offered treatment for his drug abuse and refused.  The NDRB found nothing in the applicant’s records to support the claim that the applicant was discharged improperly.  Relief is denied.

The applicant’s sixth issue states:  “Under today's standards, utilization of the probation and rehabilitation program has served to ease the issuance of punitive and / or harsh discharges in those cases where the offense committed was not extreme and the member's service could have been salvaged in the best interest of the service.”  The NDRB found this issue without merit.  An Other Than Honorable discharge for a repeated drug offender is appropriate.  Relief is denied.

The applicant’s seventh issue states:  “We believe the applicant has been adequately punished for his offenses against the good order and discipline of the military service.  To continue to impose the burden of an Under Other Than Honorable discharge for the relatively minor infractions he committed while in service would be unduly harsh and therefore create an injustice.”  The NDRB found the Other Than Honorable discharge appropriate for the applicant’s offenses:  Violation of UCMJ Articles 92 and 134 (2).  Both of the offenses are considered serious offenses in that they warrant a punitive discharge if tried by court martial.  Relief is not warranted.

The applicant’s eighth issue states:  “Mr. (applicant) is making a fine effort to improve his position in life and he should be encouraged in his endeavor to attain such status.  In order to assist him, the Board will need to determine that his discharge should be changed to one less severe.  Therefore due to considered improprieties by the past Naval Command, and the FSM's outstanding efforts to change, as mentioned by the multiple statements of record from family, friends and neighbors, attesting that he is a productive member of society, we request that clemency be utilized.  It is our belief that FSM (applicant) has suffered the effects of his current discharge long enough.”  While the NDRB finds the applicant’s personal pursuits commendable, the NDRB will not grant relief on this basis alone.  Furthermore, the NDRB found no impropriety or inequity in the applicant’s discharge.  Relief is not warranted.

Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560), Change 4/84, effective 
25 Apr 84 until 16 Sep 84, 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 view DoD Directive 1332.28 and other Decisional Documents by going online at "afls14.jag.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:

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