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

 ex-HN, USN
Docket No. ND99-00968

Applicant’s Request

The application for discharge review, received 990713, 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 listed Civilian Counsel as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000331.  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, authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I am seeking an upgrade of the discharge received to general under honorable.  The circumstances under which that discharge was awarded I believe are insufficient, deficient and improper.  Attached hereto and incorporated by reference and marked as exhibit "A", is a letter from my military lawyer outlining the problem.

2.  My discharge is not warranted by the administrative proceeding conducted, my service record, any evidence submitted.  The underlying results of a urinalysis were not valid.  They were insufficient upon which a criminal finding out of court martial could be sustained.  The defects in the evidence are so serious that a discharge characterized as other than honorable cannot be sustained. 

Documentation

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

Copy of DD Form 214
Copy of Enlisted Performance Evaluation Report
Copy of Letter of Deficiency (2pgs)

PART II - SUMMARY OF SERVICE

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

	Active:   USN			860618 - 911010	HON
	Inactive: USNR 		860121 - 860617	COG

Period of Service Under Review:

Date of Enlistment:  911011		Date of Discharge:  951219

Length of Service (years, months, days):

	Active:    04  02  08
	Inactive:  None

Age at Entry:  18			Years Contracted:  6 

Education Level:  12			AFQT:  53

Highest Rate:  HM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.46 (9)	Behavior:  3.28 (9)		OTA:  3.46

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, AFEM (2), SSDR (3), FMFR, GCM, Pistol Marksmanship Ribbon 

Days of Unauthorized Absence:  None 

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events:

911227:	NAVDRUGLAB SAN DIEGO,CA urinalysis report indicate applicant tested positive for THC.

920212:	NJP for violation of UCMJ, Article 112a: Wrongful use, possession, etc., of controlled substances.
	Award:  Reduction to E-4.  No indication of appeal in the record.

920219:	Director, Consolidated Substance Abuse Counseling Center alcohol evaluation states HM3 B______ was evaluated by GySgt B_____.  The diagnostic impression is:  Incidental Abuse.  Recommendations:  HM3 B_____ should be discharged in accordance with the current Navy policy.  HM3 B______ should be monitored on a 2x4 Program while awaiting discharge.

920227:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).  Commanding officer’s comments(verbatim): ”I strongly recommend administrative separation.  HM3 B______'s blatant disregard for the Navy's Zero Tolerance policy on drug abuse is totally unacceptable.  He is not worthy of continued naval service.

920312:	BUPERS directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

921007:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by NJP on 920212.

921008:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

921208:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to drug abuse, recommended applicant be retained.

930125:	Commanding officer recommended retention.  Commanding officer’s comments(verbatim),:  “I concur with the finding and recommendation of the Administrative Board.  The evidence clearly indicates that HM3 B____ committed misconduct due to drug abuse.  He has however, demonstrated himself to be a valuable asset and should be retained in the Naval Service due to his extensive training and potential for continued valuable service”.

930318:	BUPERS retention warning.

930409:	DAAR indicates applicant tested positive for marijuana, as a result of a unit sweep urinalysis, found not dependent by medical officer, recommended separate via VA Hospital.

940707:	NAVDRUGLAB SAN DIEGO,CA urinalysis report indicate applicant tested positive for Methamphetamines.

940707:	NAVDRUGLAB SAN DIEGO,CA urinalysis report indicate applicant tested positive for THC.

940714:	Placed on the Drug Screening Surveillance Program for a period of six months.

940801:	Applicant failed to participate in mandatory surveillance urinalysis.

940916:	DAAR indicates applicant tested positive for amphetamines, as a result of a random urinalysis, found not dependent by medical officer, recommended separate via VA Hospital.

940916:	DAAR indicates, through surveillance, applicant abused marijuana, found not dependent by medical officer, recommended separate via VA Hospital.

941202:	NAVDRUGLAB SAN DIEGO,CA urinalysis report indicate applicant tested positive for THC.

941220:	NAVDRUGLAB SAN DIEGO,CA urinalysis report indicate applicant tested positive for THC.

950103:	NAVDRUGLAB SAN DIEGO,CA urinalysis report indicate applicant tested positive for THC.

950130:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by the urine sample you provided on 941122 testing positive for THC, the urine sample you provided on 940719 testing positive for THC, and the urine sample you provided on 911204 testing positive for THC.

950207:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

950407:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

950418:	NAVDRUGLAB SAN DIEGO,CA urinalysis report indicate applicant tested positive for THC.

950501:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

951012:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).  Commanding officer’s comments (verbatim): “I concur with the finding and recommendation of the Administrative Separation Board.  Although his work performance while attached to this command has been satisfactory, HM2 B_____ was well aware of the Navy's "zero tolerance" drug policy, and yet still chose to participate in an illegal activity.  I feel that this lack of responsibility, judgement, and respect for regulations should be rewarded an Other Than Honorable discharge.”

951127:	BUPERS 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 951219 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).

Responding to the applicant’s first and second issue, the Board found nothing in the records, nor did the applicant provide anything to indicate or to show that there exists an error of fact, law, procedure, or discretion, associated with his discharge at the time of issuance, and that his rights were prejudiced thereby.  Relief is therefore denied. 

Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560C), Change 9/94, effective 
22 Jul 94 until 02 Oct 96, 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