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

ex-AO2, USN
Docket No. ND00-00980

Applicant’s Request

The application for discharge review, received 000828, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing before the board in the Washington National Capital Region.  The applicant did not list any representative on the DD Form 293.  Subsequent to the application, he requested a documentary (record) review.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010402.  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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  Showing how the Navy Drub lab was altering data of urine.

2.  Dr. P_ of the Drug Laboratory testimony under oath how the problem exist and the people are still working there.

3.  The question he asks me when I was taking the polygraph test and his license.

4.  If I was taking Tylenol/Codeine it should have shown up on the urine test under opium or codeine base.  Neither was shown up only cocaine.

5.  Ask for a court-martial did not receive one.  Because if I would have had a court martial.  I would have been acquitted of all charges.

6.  I performed two polygraph examinations, also Dr P_ gave in full detail about how the Drug lab was tampering with specifics and the people are still working there until this day.  Also I have the original conversation of the Admin Bd.

Documentation

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

Letter to congressman dated July 20, 2000

PART II - SUMMARY OF SERVICE

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

	Active:   USN			851202 - 891031	HON
		   USN			891101 - 931031	HON
	Inactive: USNR (DEP)	850226 - 851201	COG

Period of Service Under Review:

Date of Enlistment:  931101		Date of Discharge:  950412

Length of Service (years, months, days):

	Active:    01  05  12
	Inactive:  None

Age at Entry:  27			Years Contracted:  4

Education Level:  12			AFQT:  33

Highest Rate:  AO2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (2)	Behavior:  3.80 (2)		OTA:  4.00

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, GCM, BER (2), SSDR (2), Letter of Commendation (3) 

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events:

941020:	NAVDRUGLAB, Norfolk, VA reports applicant's urine sample received 941007 tested positive for cocaine.

941219:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by a positive result for cocaine of a sample submitted for unit sweep on 6 October 1994.

941221:  	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

941222:	Notice of Decision from Physical Evaluation Board: 10% disability.

950207:	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 general (under honorable conditions).

950302:	Commanding officer recommended discharge general (under honorable conditions) by reason of misconduct due to drug abuse (use).  Commanding officer’s comments (verbatim): Although I concur with the recommendations of the board, this case has some extenuating circumstances.  First and foremost, AO2(AW) (applicant's) service to date has been nothing but outstanding.  Second, AO2(AW) (applicant) was awaiting a medical discharge for a knee injury when the urinalysis reported his sample positive for cocaine.  Because the misconduct occurred after the injury, and AO2(AW) (applicant's) service has been so exemplary, I strongly recommend AO2(AW) (applicant) retain the medical disability to which he was entitled prior to the administrative separation board.  Therefore, I urge the review board to retain AO2(AW) (applicant) and allow him to be discharged under a medical disability.

950328:	BUPERS directed the applicant's discharge general (under 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 950412 general (under 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 issues 1 through 4, the Board found that 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 its issuance, and that his rights were prejudiced thereby.  The applicant was afforded all of his proper rights and due process.  Furthermore, there has been no change in policy by the Navy, or higher authority, made expressly retroactive to the type of discharge received by the applicant.  No relief will be granted based on this issue. 

In response to the applicant’s issue 5, it is the Commanding Officer’s prerogative to send a service member to court martial or award an NJP.  It is not the “right” of a service member to choose one or the other.  In the applicant’s case, the CO elected to separate the member and not send him to a court martial or award CO’s NJP.  The Board found the applicant received his proper rights and all due process and therefore, the Board finds that the discharge was proper.  No relief will be granted based on this issue. 

The applicant states in issue 6 that “I performed two polygraph examinations, also Dr P_ gave in full detail about how the Drug lab was tampering with specifics and the people are still working there until this day.  Also I have the original conversation of the Admin Bd.”  The Board did not find results of a polygraph exam in the service record, nor did the applicant present any evidence to prove that the Drug test was inaccurate.  No relief will be granted based on this issue. 

There is no law or regulation that provides for the upgrade of an unfavorable discharge based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the Service.  However, the Board is authorized to consider post-service factors in the recharacterization of a discharge (D).  Those factors include, but are not limited to, the following:  evidence of continuing educational pursuits (transcripts, diplomas, degrees, vocational-technical certificates), a verifiable employment record (Letter of Recommendation from boss), documentation of community service (letter from the activity/community group), certification of non-involvement with civil authorities (police records check) and proof of his not using drugs (detoxification certificate, AA meeting attendance or letter documenting participation in the program) in order for consideration for clemency based on post-service conduct.  At this time, the applicant has not provided any documentation of good character and conduct.  Therefore no relief will be granted.  The applicant is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15-years from the date of discharge.

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 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