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

  ex-BTFN, USN
Docket No. ND05-00627

Applicant’s Request

The application for discharge review was received on 20050228.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests 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 20050608.  After a thorough review of the available 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: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “Block 28 of my DD 214 notes commission of a serious offense.  Prior to discharge under other than honorable conditions I was not afforded the opportunity to receive appropriate counseling nor advised of such counseling.  I should have been transferred TAD to the nearest separation activity and afforded medical evaluation or opportunity to participate in a CAAC/ARD program.  At time of my separation I had 2 years 2 months and 25 days sea service and a total of 4 years, 2 months and 24 days of Naval service.  I believe that had I received appropriate leadership counseling and referral I would have overcome deficiency and had a productive Naval career.  Block 13 of my DD 214 reflects decoration to include a Kuwait Liberation Medal.  It is my firm belief that had I received appropriate counseling and or medical assistance instead of separation I would have completed my enlistment.  There was no pattern of behavior on my part to warrant a discharge with a narrative of misconduct-a serious offense for a single isolated offense given my term and nature of service.  Although I did make a mistake early intervention and an opportunity for rehabilitation would have been a productive avenue for myself and the Navy.”

REMARKS: “I would like the members of the Naval Discharge Review Board to know that I regret and apologize for my Unauthorized Absence and use of illicit drugs.  Although not relevant to the Board for consideration, I have completed a long treatment program and am providing certification of that fact along with this document.  It is now my hope to correct my discharge review process and enlist in the United States Army.  Therefore, this application of any administrative assistance you may offer in regard to this request.”
 
Documentation

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

Applicant’s DD Form 214
Certificate of Completion (Residential Treatment Service Program) dated 050126
Letter from Applicant dated 050213 

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	871021 - 880105	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  880106		Date of Discharge:  920505

Length of Service (years, months, days):

	Active:    04  03  24		[Excludes lost time]
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 (12 month extension)

Education Level:  12			AFQT:  58

Highest Rate:  BT3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.84 (5)		Behavior:  3.96 (5)		OTA:  3.72

Military Decorations:  None

Unit/Campaign/Service Awards:  GCM, NUC, SASM(3), NER, NDSM, KLM

Days of Unauthorized Absence:  36

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:

920224:	Missed ship’s movement.

920325:	NJP for violation of UCMJ, Article 86: UA from unit 920205 to 920305; and UA from unit 920316 to 920322; violation of UCMJ Article 87: Missed ship’s movement on 920211; violation of UCMJ Article 112a: Wrongfully use marijuana on or about 920308 and wrongful use of cocaine on or about 920308.
	Award:  Forfeiture of $521.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-3.  No indication of appeal in the record.

920326:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by the Article 87, UCMJ, offense committed during current enlistment, and misconduct due to drug abuse as evidenced by the drug abuse offense committed during current enlistment [Extracted from CO’s message].

920328:	Applicant advised of rights and having elected 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 [Extracted from CO’s message].

920330:	Medical Evaluation: Member has a mild psychological dependence to marijuana.  Member has a significant history of chronic drug abuse since late adolescence.  Member readily admits to experimentation with cocaine and LSD prior to enlistment and during active duty.  Member states that his drug of choice has been and is marijuana.  Member reports using marijuana on almost a daily basis.  Member states that he strongly craves the drug and makes more than a normal effort to obtain it.  Member has no alcohol related incidents [Extracted from CO’s message].

920403:	Command requests psychological evaluation due to suicidal ideation and gesture with handgun.  Applicant stated he would hang himself on ship after killing two shipmates.  Applicant diagnosed with personality disorder and polysubstance dependant, having used THC five times over the past two months.
     
920409:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense as evidenced by the Article 87, UCMJ, offense committed during current enlistment, and misconduct due to drug abuse as evidenced by the drug abuse offense committed during current enlistment. 

920415:	Applicant diagnosed with adjustment disorder with mixed emotional features, polysubstance drug abuse and personality disorder, NOS, severe, with anti-social and borderline features (EPTE).  Applicant is considered responsible for his behavior and recommended for expeditious separation due to personality disorder or by under other than honorable conditions discharge.  

920416:	Applicant elected to receive VA treatment prior to separation.

920416:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

920501:	Applicant declined in-patient treatment at VA hospital.

[Complete discharge package not contained in service record]
PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19920505 under other than honorable conditions for misconduct due to commission of a serious offense (A and B).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (E).    

Issue 1.  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.  An under other than 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 violations of Articles 86, 87 and 112a of the UCMJ.  The  Applicant’s Article 87 violations are considered serious offenses.  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 is not warranted.

The Applicant states that his character of service should be upgraded because he was not, “afforded the opportunity to receive appropriate counseling nor advised of such counseling.”  On 19920328, two days after notification, the Applicant waived his right to administrative separations board after having elected to consult with counsel.  The Board found no indication in the record that the Applicant was inequitably or improperly denied treatment for his drug use.  Similarly, the Applicant states that he should have been “afforded medical evaluation or opportunity to participate in a CAAC/ARD program.”  The Applicant was evaluated and found to be polysubstance dependent on 19920403.  The Applicant elected to participate in the VA treatment program on 19920416 and later declined treatment on 19920501. The Applicant’s allegations and statements do not refute the presumption of regularity in this case.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  The Applicant’s issue is without merit.  Relief denied.

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural impropriety or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no impropriety after a review of Applicant’s case.  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 Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided sufficient documentation for the Board to consider.  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), effective 15 Aug 91 until 
04 Mar 93, Article 3630600, SEPARATION OF ENLISTED PERSONNEL 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 87, missing movement, if adjudged at a Special or General Court-Martial.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

E.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, 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 “http://Boards.law.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:

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