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

ex-CTISR, USN
Docket No. ND03-01275

Applicant’s Request

The application for discharge review was received on 20030724.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record review.  The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040910.  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 Applicant’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: GENERAL (UNDER HONORABLE CONDITIONS)/SECRETARIAL AUTHORITY, authority: NAVMILPERSMAN, Article 3630900.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “My discharge and total days of active service resulted from a GCM in 1992.  The appeals court found the punishment to have been too severe (1 count Art. 138 – Adultery) but due to the incarceration, legal hold, etc, I did not qualify for Honorable discharge due to lack of days of svc.  I made a mistake in choosing a sex partner, but I have always in all other ways been a model citizen and sailor.  I want my GI Bill money so I can finish my masters degree.”

Documentation

Only the service record was reviewed, as the Applicant did not provide any documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	890623 - 890724	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  890725		Date of Discharge:  931026

Length of Service (years, months, days):

	Active:    04  03  02 (Does not exclude lost time, confinement, appellate leave)
	Inactive:  None

Age at Entry:  22			Years Contracted:  4 (12 months extension)

Education Level:  BA 		AFQT  95

Highest Rate:  CTI3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.8 (1)	Behavior:  3.8 (1)		OTA:  NOB

Military Decorations:  None

Unit/Campaign/Service Awards:  OSR, NDSM, SWASM

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/SECRETARIAL AUTHOIRTY, authority:  NAVMILPERSMAN, Article 3630900.

Chronological Listing of Significant Service Events:

920224:	CACC Report to the CO, NAVSECGRUACT MISAWA JA:  Self-referral initiated 24 Feb 1992.  Applicant advised of confidentially on his disclosure of using marijuana on 14 Feb 92.  He inquired as to the possibility to be discharged since he saw a message concerning CNO’s drug abuse policy.  Applicant advised his command would be notified, may receive treatment, and may be discharged.  Applicant stated, “I do not want any treatment, I am not dependent on drugs.”

920225:	Applicant charged with violation of the UCMJ, Article 112 (2 Specs)
Specification 1:  On or about 14 Feb 92, wrongfully use marijuana, a scheduled I controlled substance.
Specification 2:  On or about 8 Apr 92 through 14 Feb 92, wrongfully introduce some marijuana, a scheduled I controlled substance onto a vessel, aircraft, vehicle, or installation used by the armed forces or under control of the armed forces, to wit:  Misawa Air Base, Japan.

920316:	Applicant notified of intended recommendation for discharge under other than honorable conditions and administrative reduction to pay grade E-3 by reason of misconduct due to drug abuse as evidenced by admission on 24 Feb 1992.

920316:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27(b), 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 statements.  Applicant did not object to this separation.

920317:	Applicant’s Statement:  Applicant did not object to the separation, but objected to the characterization of service of Under Other Than Honorable Conditions.  Applicant listed reasons for the objection.

920417:	Mental Health Evaluation:  As result of eval, did not find any evidence of a psychiatric disorder requiring action through military medical channels.  Did not find any evidence to suggest the presence of a personality or character-behavior disorder.  His physical profile is S-1, he is competent for pay purposes, and he is qualified for world-wide assignment.
	Diagnosis:  Axis I, II, III – NO DIAGNOSIS V71.09 (OBESSIVE-COMPULSIVE TRAITS).
	Conclusion:  Continuation of his military career should be determined by his duty performance as well as behavior, both on and off-duty.  Any further administrative action is entirely at the discretion of his commander, under the appropriate administrative regulations.

920424:	DAAR:  Self-referral, date of incident Feb 24, 92, ashore-off duty, marijuana use, evaluated by CAAC, not dependent, not eligible for treatment, member possesses no potential for further military service.

920609:	BUPERS advised NAVSECGRUACT MISAWA JA that admin proceedings held in abeyance because unable to determine from supporting documents if there is an incident or drug abuse other than self referral for which member may receive an Other Than Honorable discharge.

920618:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  Commanding Officer’s comments (verbatim):  “1.  At 0630, 24 February 1992 CTI3 K_ W_ M_ (Applicant) arrived at an appointment with the command DAPA.  CTRC M_ E_, USN and admitted to using marijuana (“2 joints”) on 14 February 1992.  CTI3 M_ (Applicant) stated that he brought the marijuana to Japan in his carry-on baggage.  He further stated that he smoked it in the bathroom of the Bachelor Enlisted Quarters.  During the interview with the DAPA CTI3 M_ (Applicant) stated “I saw a message on the read board Friday (Ref C – CNO NAVADMIN 018/92) which may allow me to be processed out.”  He then asked if he “would be processed out with an honorable discharge?”  Also during the interview, CTI3 M_ (Applicant) stated, “I do not want any treatment.  I am not dependent on drugs.”  CTI3 M_ was asked for and gave consent for a urinalysis, which returned negative.
2.  Ref D (OPNAVINST 5350.4B) states that confidential information may not be used for disciplinary action or characterizing discharge.  Confidential information is defined as information disclosed by the member in response to inquiring to authorized screening personnel or for the express purpose of seeking or obtaining counseling.  Treatment or rehabilitation specifically excluded is information not disclosed in order to seek rehabilitation.
3.  In this case it is clear that the purpose of divulging that information was to obtain a discharge from the Navy.  The disclosure was made at the first opportunity after REF C (CNO NAVADMIN 018/92) was read by CTI3 M_ (Applicant).  He specifically mentioned that message in his meeting with CIRC E_.  He was somewhat concerned with the type of discharge he would receive but was not at all concerned with obtaining treatment.
4.  CTI3 M_ (Applicant) is obviously attempting to manipulate the system to obtain a convenient discharge.  To allow this abuse of the system would not further the purpose of the self-referral system.  Which I believe is to encourage abusers to seek the Navy’s assistance in obtaining rehabilitation, treatment, and counseling.  I heartily support the self-referral program when used for its intended purpose.  In this case, however, I recommend a discharge under other than honorable conditions.”

920710:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

920715:	Applicant signed Suspect’s Acknowledgement and Waiver of Rights and was advised by Special Agent J_ E. S_ that he was suspected of rape.  Applicant provided statement.

920723:	NCIS Report contained in service record:  Investigation initiated on 13 Jul 92 after command notification of allegation of rape by Applicant during the early morning hours of  3 Jul 92.

920730:	NAVSECGRUACT Misawa Japan requested to BUPERS to hold Applicant’s discharge in abeyance pending an Article 32 investigation which may result in referral to a General Court-Martial.

930204:	General Court Martial 
	Charge I:  violation of the UCMJ, Article 134:  Did, on Misawa Air Base, Japan, on or about 92JUL03, wrongfully have sexual intercourse with CTSN E_ A. F_, USN, a married woman not his wife. 
	Findings:  to Charge I and specification 1 thereunder, guilty.
	Sentence:  Forfeiture of all pay and allowances; reduction in rate to pay grade E-1; confinement for 6 months and dishonorable discharge.
	CA 930609:  Only so much of the sentence extending to a dishonorable discharge is changed to a bad conduct discharge.  Sentence, as changed, is approved, and except for that part of the sentence extending to a bad conduct discharge, will be executed.

930204:	Transferred to NAVCONBRIG Miramar for confinement.

930205:	Confinement at the Navy Brig, Miramar.

930721:	From confinement; to appellate leave.

931026:	Applicant discharged with a General (Under Honorable Conditions) by reason of Secretarial Authority under the authority of MILPERSMAN 3630900 and GNSCMO NO. 93-1174 dtd 93OCT26.

[BOARD COULD NOT OBTAIN A COPY OF THE RECORD OF TRIAL (GENERAL COURT-MARTIAL)] 

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19931026 with a general (under honorable conditions) by reason of secretarial authority (A).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this, the Board found that the discharge was proper and equitable (B and C).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).

Issue 1:  The Applicant desires an honorable discharge so that he may use the Montgomery G.I. Bill to complete his master’s degree. Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question.  No such impropriety or inequity is evident during the Applicant’s enlistment.  The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  

The Applicant contends that he has always been a model citizen and sailor and as such, he is entitled to an upgrade.  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.  A general (under 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 Applicant’s service was marred by nonjudicial punishment proceedings for two violations of Article 112a of the UCMJ.  The Applicant’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 denied.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C, Change 7, effective 30 Jul 93 until 21 Jul 94), Article 3630900, SEPARATION IN THE BEST INTEREST OF THE SERVICE.

B.  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.

C.  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.

D.  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.  

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