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

ex-FR, USN
Docket No. ND00-00835

Applicant’s Request

The application for discharge review, received 000622, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a personal appearance hearing review.  The applicant designated a civilian attorney as his representative on the DD Form 293.  In the acknowledgement letter to the applicant, he was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010111.  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 (verbatim)

1.  Mr S_ C_ (Applicant) was improperly discharged from the U.S. Navy.  His waiver of the administrative discharge board, the right to be represented by counsel at the board, and right to consult counsel were not freely made, but were coerced by the actions of his commander.  Likewise, the non-judicial punishment that was the basis of the discharge action, was also the product of coercion, whereby S_ C_ (Applicant) waived his right to counsel.

Documentation

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

Copy of DD Form 214
Statement of Facts/Argument (4 pages)
Military Suspect's Acknowledgement and Waiver of Rights with Continuation Statement dtd 17 Jul 99
Nonjudicial Punishment Notification and Election of Rights Sheet dtd 6 Jul 99 (4 pages)
Admin Separation Notification dtd Jul 28, 1999 (2 pages)
DFAS Denver Collection letter dted Feb 18, 2000 (2 pages)
Applicant's ltr to DFAS requesting a waiver dated Mar 14, 2000 (2 pages)

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	981230 - 990125	COG

Period of Service Under Review:

Date of Enlistment:  990126		Date of Discharge:  990916

Length of Service (years, months, days):

	Active:    00  07  21
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  GED		AFQT:  72

Highest Rate:  FR

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:

990628:	Specimen Custody Document - Drug Testing, SSC Great Lakes, IL:  Random urinalysis - applicant tested positive for cocaine.

990715:	Applicant made following statement on the Military Suspect's Acknowledgement and Waiver of Rights:  "I FR C_ did not use cocaine.  I did however use Tylenol 3 with codean.  At the time I was unaware of the fact this would show up in a drug test as Cocaine.  I took this Tylenol for a migraine headache.  I did not use cocaine at anytime!!!  End of Statement!!!"

990728:	NJP for violation of UCMJ, Article 112A:  wrongful use of cocaine, violation of UCMJ Article 86: unauthorized absence from Service School Command from 17 July 1999- 19 July 1999.
Award:  Forfeiture of $479.00 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

990728:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

990728:	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 make a statement and the right to obtain copies of the documents used to support the basis for the separation.

990729:	Applicant offered but declined in-patient treatment at Level III Treatment Facility (ARC/ARD).

990730:	Medical evaluation for drug abuse found the applicant to be a drug abuser, not drug dependent.   

990730:	Applicant's Statement:  Mr name is FR C_.  I am presently on restriction for the use of cocaine.  I have been telling people that ever since the results came back.  It seems that no one except the people that know me will believe me.  I have also had three other drug tests since this one and none of them has came up positive for anything.  I am sure you probably here this all the time so its hard for you to believe anyone.  I know that if I were I your shores it would be hard for me to believe a story like this one.  Therefore, I cannot say I blame the people that do not believe me, but it is not true.  Therefore, the question comes up "How did it get in your system?" I wish I knew.  I wish I could tell you tat someone slipped it into my drink of something like that.  I cannot say that because I do not know.  I am just asking you to believe me.  If you check my record, you will see that I have never been in any trouble before.  I have always kept my grades up.  I admit I have made a few mistakes but I do not deserve the other than honorable discharge that I have received.  With that, I ask of you to let me have a general discharge."

990825:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).  Commanding officer’s comments (verbatim):  "FR (Applicant) misconduct is summarized above.  FR (Applicant) received nonjudical punishment on 28 July 1999 for one specification of wrongfully using cocaine.  He was afforded the opportunity to appeal his nonjudical punishment, but declined.  Also, FR (Applicant) waived his right to an Administrative Board.  Based on his positive urinalysis, I find FR (Applicant) has not further potential for further naval service.  I recommend FR (Applicant) be separated from the naval service with a discharge characterized as Under Other Than Honorable Conditions."

990830:	Commander, NTC, Great Lakes, IL 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 990916 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 response to the applicant’s issue, an error or injustice must be found to have existed during the period of enlistment under review to permit relief. The applicant claims that he was coerced to waive his right to counsel and to have an administrative discharge board.  There was nothing in the records, nor did the applicant provide any documentation, to indicate there existed an error of fact, law, procedure, or discretion at the time of discharge.  The NDRB has only the signed documents whereby the applicant waived his rights and cannot act on alleged coercion by the applicant’s command.  Therefore, the Board has determined that there was no rights violation and no basis for relief.

The following is provided for the applicant’s edification.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (D).  The applicant must be aware that 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, may be considered by the NDRB.  The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is highly recommended.

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