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

ex-SA, USNR
Docket No. ND00-00198 

Applicant’s Request

The application for discharge review, received 991124, requested that the characterization of service on the discharge be changed to Honorable.  The applicant requested a documentary record discharge review.  The applicant listed a private counsel as representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 000803.  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 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I challenge my discharge for using marijuana.  I had nothing on my record to warrant such a quick release from the Navy.  I had never failed any other drug test given by the navy.

2.  In April of 1998 the whole crew of the USS Hayler was required to take a drug test before our scheduled overseas cruise.  When the results returned I was informed that mine came back positive for marijuana, but also there had been a breach to the room containing the urine samples.  Some type of investigation was suppose to have been conducted.  I requested & was denied the opportunity to take another test.  I consulted with a JAG lawyer & received no advise as to what my options were, only that there was nothing I could do.  Afterward I just signed all papers given to me which also included my rights.  I now realize, if I hadn’t listened to the Jag lawyers advise I won’t have signed away my rights.  I learned the hard way the importance in getting a second opinion when some tells  me there is nothing you can do.  My punishment from the Captain had been confinement to the ship with1/2 pay.  I was offered the General discharge but refused it because I was not guilty of the charge.  I couldn’t speak with my family in private.  I was under the imprecision that I could still get a hearing which I never received.  Instead I was surprised when my discharge papers where signed.

Documentation

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

Statement from applicant
Analysis report dated March 13, 1999
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	970421 - 970721	COG

Period of Service Under Review:

Date of Enlistment:  970722		Date of Discharge:  980812

Length of Service (years, months, days):

	Active:    01  00  21
	Inactive:  None

Age at Entry:  19			Years Contracted:  8

Education Level:  12			AFQT:  32

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF			Behavior:  NMF		OTA:  NMF

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, authority:  NAVMILPERSMAN, Article 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events:

980313:	NJP for violation of UCMJ, Article 86: Unauthorized absence, violation of UCMJ Article 92: Insubordinate conduct, violation of UCMJ Article 134: Threat communicating.
	Award:  Restriction and extra duty for 14 days.  No indication of appeal in the record.  [Extracted from CO's letter dated 6 July 1998.]
980629:	NJP for violation of UCMJ, Article 112A:  Wrongful use of a controlled substance.
	Award:  Forfeiture of $463 per month for 1 month, restriction and extra duty for 30 days.  No indication of appeal in the record.

980706:	Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse as evidenced by your nonjudicial punishment on 29 June 1998 for the wrongful use of marijuana, in violation of Article 112a, UCMJ.

980706:  	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.

980708:	Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse (Use).  Commanding officer’s comments (verbatim): a. Recommend administrative separation for SN (applicant).
	b. At NJP proceedings SN (applicant) admitted to wrongful use of a controlled substance while on liberty at his old neighborhood.  He admitted and remembered our Navy's policy on drug use.  He was unable to say why he did what he did at NJP.
	c. SN (applicant) is an average sailor.  He has had one other NJP during his time onboard.
	d. I have told SN (applicant) that I take no pleasure in having proces2ed for administrative separation. I feel it is necessary for good order and within this command.

980724:	Commander, Naval Surface Force, U.S. Atlantic Fleet 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 980812 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).

In the applicant’s issue 1, the Board determined this issue is without merit.  The applicant claims he had nothing on his record to warrant such a quick release from active duty and he had never failed any other drug test given by the Navy.  The applicant must realize multiple drug test failures is not a requirement for separation.  If you fail one Navy drug test, Navy regulations require mandatory processing for separation.  The applicant’s discharge was proper and equitable.  Relief denied.

In the applicant’s issue 2, the Board determined this is not a decisional issue.  The applicant makes several statements concerning the sequence of events beginning with the crew of his ship participating in a drug test, through receiving his discharge papers.  No further comment required.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 Dec 97 to 19 May 99, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - 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