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

 ex-BUCN, USN
Docket No. ND00-01011

Applicant’s Request

The application for discharge review, received 000830, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a personal appearance hearing before the board in the Washington National Capital Region.  The applicant listed the Veterans of Foreign Wars as the representative on the DD Form 293.  In the acknowledgement letter to the applicant, the applicant 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 010215.  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 – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues(verbatim)

1.  A few days prior to NMCB 133 deploying it's Air Detail (to which I was attached) to Iraq for Operation Provide Comfort, from Rota, Spain, my wife informed me that she was leaving me.  Needless to say, I was suffering greatly from that development as I could do nothing about it.  During our time in Iraq I continued to do my job to the best of my ability.  Upon our battalion's return to Rota I acquired a job in a local bar as a doorman/bartender.  I worked most nights and started to drink very heavily.  Although my drinking was becoming a problem, it was not noticed by my command because I continued to work as always at my job in the Navy.  I had no record of UA or any other problem related to working in the bar at night until late July or early August when I was told I had turned up positive for cocaine during a command random urinalysis.  At that time I informed the CMAA J_ H_ that I was unaware that I had used cocaine and that it must have been in a blackout while drinking.  They charged me with using a controlled substance.  I chose to go to Captain's Mast where I was given 45 days restricted duty, 45 days EMI. 2 months half, and a reduction to E-3.  After a few weeks on restriction, CMAA H_ called me into his office along with BU3 J_ D_, who was MAA at the time.  Chief H_ said that D_ was a witness to what he was going to tell me.  Essentially, the Chief told me that while out in town working on some other investigation, he heard the owner of the bar next to where I worked bragging that he had someone who worked with me at the bar putting cocaine in my drinks so that eventually I would get "popped" on urinalysis and would no longer be able to work at the bar.  His incentive was that his estranged wife owned the bar where I was employed and he owned the bar next door.  He and his employees were unable to cause problems while I working there.  Because of the amount that I was drinking every night, it would have been easy to "slip me a Mickey".

I had the opportunity to go before an Administration Board where I could have had a chance to prove myself innocent of the charge on the testimony of CMAA H_.  My Navy appointed attorney said that I should have taken a court martial rather than a Captains Mast.  His point was that if I was blacked out at the time I allegedly committed this crime, I could not have knowingly used cocaine.  This was something else that could have been used at my Administration Board.  My lawyer informed me that if I waived my Administration Board and my commanding officer recommended it, I could receive a General Discharge.  At that point I really only wanted to get out so I went with that option.

It was in October that I signed a waiver of my right to an Administrative Board with the belief that I would receive a General Discharge.  At that time I continued working for the MAA and carried out my duties in a professional manner.

On 2 May 92, I was separated from the Navy with an Other than Honorable Discharge for drug abuse.  If I had known that I would receive an OTH discharge, I would have opted for an Administration Board.  I honestly feel that had I elected to go to the Administration Board with the evidence of CMAA H_, character witnesses from my chain of command and my military record, then I would have been cleared of the charges and be allowed to serve out my time to EAOS.  My intention was to make a career out of the Navy until all of this happened.  I always tried to do my best and I believe my performance evaluations reflected my best efforts.

For these reasons I believe that my discharge should be changed to General/Under Honorable Conditions.

Applicant indicated, above requested that Veterans of Foreign Wars act as counsel concerning his application.  His records were reviewed on October 24, 2000 and the following comments are hereby submitted.

Applicant was processed for discharged based on the Navy's zero tolerance for drug abuse at the tune.  Even while being processed for discharge, the applicant continued to perform at an above average level.  The Commanding  Officer of Naval Mobile Construction Battalion ONE THIRTY-THREE recommended member be separated with a discharge characterized as General.

Letter from LCDR P_, USNR attests to the applicant's positive standing in the community.  Applicant offers his skills in construction to help the underprivileged.

We refer this case to the Board for their careful and compassionate consideration and request the applicant's discharge be reviewed for fairness and equity based on his commanding officer's recommendation for a general discharge.  We also ask that his request be reviewed for clemency based on post service conduct.

Documentation

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

Criminal record check dated May 18, 2000
Character reference dated April 18, 2000
Copy of DD Form 214
Two pages from applicant's service record

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	871102 - 880501	COG

Period of Service Under Review:

Date of Enlistment:  880502		Date of Discharge:  920508

Length of Service (years, months, days):

	Active:    04  00  07
	Inactive:  None

Age at Entry:  20			Years Contracted:  4 (12 months extension)

Education Level:  12			AFQT:  54

Highest Rate:  BU3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.60 (5)	Behavior:  3.68 (5)		OTA:  3.64

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, SASM, SSDR (3)

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Drug abuse (Use), authority:  NAVMILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events:

910822:	NJP for violation of UCMJ, Article 112A: Wrongful use of cocaine; violation of UCMJ, Article 92: Failure to obey an order.
	Award: Forfeiture of $481 per month for 2 months, restriction and extra duty for 45 days, reduction to BUCN.  No indication of appeal in the record.

920421:	Medical evaluation for drug abuse found the applicant to be a ETOH and a drug abuser.   

910920:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to commission of a serious offense as evidenced by one nonjudicial punishment for the wrongful use of cocaine, and offense for which a bad conduct discharge is an authorized punishment.  [Extracted from CO's message dated 30Mar92.]

910924:  	Applicant advised of his rights and having consulted 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 dated 30Mar92.]

920330:	Commanding officer recommended discharge general (under honorable conditions) by reason of misconduct due to drug abuse (use) and commission of a serious offense.  Commanding officer’s comments (verbatim): BUCN (applicant) stated at his nonjudicial punishment proceeding that he was intoxicated at the time he used the cocaine and does not recall the circumstances surrounding the events leading up to his use nor does he recall actually using it.  Notwithstanding his assertion, he is still responsible for his actions and drug abuse cannot be tolerated.  Therefore, separation from the naval service is appropriate in this case.  However, BUCN (applicant) has been an excellent worker since he reported to this command and has had no other incidents requiring disciplinary or administrative action.  Accordingly, based upon his performance and character of service, I recommend BUCN (applicant) be separated from the Naval Service with a discharge characterized as General.

920428:	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 920508 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 found that the applicant was properly discharged for misconduct due to drug abuse.  Although the applicant alleges that someone put cocaine in his drinks, he offers no evidence or written statements to support his assertion.  

In addition, the applicant states “if I had known that I would receive an OTH discharge, I would have opted for an Administration Board.”  This may be true, but an Administrative Discharge Board only makes a recommendation to a Commanding Officer.  In the case of the applicant, the Commanding Officer recommended him for a general (under honorable conditions) discharge.  The final approving authority is BUPERS, who directed a discharge under other than honorable conditions.  This is normally the characterization for service members discharged for misconduct due to drug abuse.  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(s) of Recommendation from boss, resume), documentation of community service (letter(s) 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(s) documenting participation in the program and recovery) in order for consideration for clemency based on post-service conduct.  At this time, the applicant has not provided ample 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), effective 15 Aug 91 until 04 Mar 93, 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