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

ex-EOCR, USN
Docket No. ND01-00948

Applicant’s Request

The application for discharge review, received 010717, requested that the characterization of service on the discharge be changed to honorable or 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 020130.  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

1.  The discharge is improper because I went to my command & requested drug treatment for a drug problem. At the time the Navy was undergoing a zero tolerance campaign.  So this did not allow me to get the needed treatment.  And I ask for a discharge before the circumstances became worst than they were.

2.  I feel I did not receive drug treatment because of racial prejudice.  Some white seabees did receive drug treatment, but I did not.  Enclosing I am under doctor's care for depression.  I feel this is a result of not receiving any treatment for my mental condition.

Thank you for your anticipation understanding to this matter.

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	870729 - 871112	COG

Period of Service Under Review:

Date of Enlistment:  871113		Date of Discharge:  891204

Length of Service (years, months, days):

	Active:    02  00  22
	Inactive:  None

Age at Entry:  26			Years Contracted:  4

Education Level:  12			AFQT:  27

Highest Rate:  EOCN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA		Behavior:  NMA		OTA:  NMA

Military Decorations:  None

Unit/Campaign/Service Awards:  None

Days of Unauthorized Absence:  90 

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:

871114:	Applicant briefed on Navy's policy on drug and alcohol abuse.

881123:	NJP for violation of UCMJ, Article 86: Unauthorized absence from 0730-1630, 25Oct88, and 0730-1215, 1Nov88, and 2200, 1Nov88 to 1120, 7Nov88 (   days/surrendered), violation of UCMJ, Article 112A: Wrongful use of controlled substance, to wit: cocaine on 7Nov88.
	Award: Oral admonition, restriction for 15 days, extra duty for 30 days, reduction to EOCA.  No indication of appeal in the record.

890221:	Applicant declared a deserter.

890303:	Applicant apprehended by civil authorities at 2230, 2Mar89.  Applicant returned to military control 0030, 3Mar89.  Applicant to confinement.

890420:	Applicant released from confinement.

890420:	Special Court Martial
	Charge I: violation of the UCMJ, Article 86:
	Specification: Unauthorized absence 0730, 18Jan89 until apprehended on 2230, 2Mar89.
	Charge II: violation of the UCMJ, Article 112A:
	Specification: Wrongful use of cocaine on 3Mar89.
	Findings: to Charge I and II and specifications thereunder, guilty.
	Sentence: CHL for 4 months, forfeiture of $300 per month for 4 months, reduction to EOCR.
	CA 890601:  Sentence approved and ordered executed.

890713:	Applicant apprehended by Los Angeles police department and charged with possession of cocaine on 1715, 13Jul89.

890818:	Applicant released from civil confinement to custody of military control 1015, 18Aug89.

890824:	NJP for violation of UCMJ, Article 86: Absent from unit without authority on 0715, 7Jul89 until 1500, 19Aug89.
	Award: Forfeiture of $300 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

890829:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct, misconduct due to the commission of a serious offense, and misconduct due to drug abuse as evidenced by your service record.

890829:	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.

890913:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

890928:	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 891204 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).

Issues 1 and 2.  The Board found no evidence in the official record or documentation provided by the applicant that he was unfairly denied medical treatment because of his race or for any other reason.   The applicant was provisionally diagnosed as an alcohol and chemical abuser on 890831, and was referred to the alcohol rehabilitation clinic for evaluation.  There is no record of a subsequent evaluation for dependence.  The Board presumed regularity in the conduct of governmental affairs (B).  The Board did not find sufficient evidence that the Navy was obligated to treat the applicant’s alleged substance abuse problem prior to his discharge.  Relief is therefore denied.

Under other than honorable conditions 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 applicant’s service was marred by award of nonjudicial punishment (NJP) on two occasions and a special court-martial on another occasion. The applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful disobedience of the orders and directives which regulate good order and discipline in naval service, and falls short of that required for an honorable characterization of service.  An upgrade would be inappropriate.  Relief denied.

The applicant’s discharge characterization accurately reflects his service to his country.  The discharge was proper and equitable.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, 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 the service. 

The applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560A), Change 8, effective 
21 Aug 89 until 14 Aug 91, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

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 "afls10.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