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

ex-AEAR, USNR
Docket No. ND00-01033

Applicant’s Request

The application for discharge review, received 000911, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a documentary record discharge review.  The applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010301.  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

1.  During my mast hearing I brought up the fact that my spouse had indulged in marijuana use.  I, as a result, came up positive for the urine test.  After reviewing the Federal Drug testing manual, and based on the type of test used at that time, I feel that passive inhalation was the cause of the positive result.  I was not using marijuana.

Documentation

Only the military service and medical records were reviewed, as the applicant did not provide additional documentation by the Board to consider.

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: None

Period of Service Under Review:

Date of Enlistment:  850828		Date of Discharge:  880318

Length of Service (years, months, days):

	Active:    01  07  27
	Inactive:  00  02  23

Age at Entry:17(parental consent)	Years Contracted:  8

Education Level:  11			AFQT:  52

Highest Rate:  AEAA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.4 (2)	Behavior:  2.9 (2)		OTA:  3.51

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 – Drug abuse (Use), authority:  NAVMILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events:

850815:	Acknowledged understanding of the Navy's Alcohol and Drug Abuse policy.

860722:	Commenced 36 months active duty under the Active Mariner Program.

871222:	NAVDRUGLAB, Norfolk, VA report: Urinalysis testing resulted in positive for marijuana.

880105:	NJP for violation of UCMJ, Article 112a:  wrongful use of a controlled substance; violation of UCMJ Article 86: unauthorized absence.
Award:  Forfeiture of ½ pay per month for 2 months, restriction for 30 days, reduction to E-1.  No indication of appeal in the record.

880203:	Medical evaluation for drug abuse found the applicant to be a recreational substance abuser, not drug dependent.  Will ok CAAC if squadron requests.

880211:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by non judicial punishment for wrongful use of marijuana as evidenced by a positive urinalysis test during your tour of duty with this command.

880211:	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.

880216:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).  Commanding officer’s comments:  "Administrative Separation of Airman (Applicant) by reason of Misconduct - Drug Abuse is requested as a result of his wrongful use of controlled substance.  At his mast proceeding on 5 January 1988, AR (Applicant) freely admitted having smoked marijuana with civilian acquaintances and could not guarantee that he would refrain from future indulgences.
	Since joining this command in August 1987, Airman (Applicant) has not been a functional contributor to the squadron.  He lacks the level of enthusiasm, responsibility, and dependability that is common among his peers.  Despite his acknowledged awareness of the Navy's substance abuse policy, (NAVPERS 1070/613, 25 July 86), his past involvement in drug use and refusal to refrain from future involvement represent a blatant disrespect for and obvious breach of Navy standards of conduct.  As this individual shows no potential for future use to the U.S. Naval Service, this command gives its strongest recommendation for Administrative Separation with an Other Than Honorable characterization."

880304:	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 880318 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).

The applicant’s issue states:  “During my mast hearing I brought up the fact that my spouse had indulged in marijuana use.  I, as a result, came up positive for the urine test.  After reviewing the Federal Drug testing manual, and based on the type of test used at that time, I feel that passive inhalation was the cause of the positive result.  I was not using marijuana.”  The Board found a conflicting statement in the applicant’s service record written by his commanding officer at the time of discharge that stated:  “…At his mast proceeding on 5 January 1988, AR (Applicant) freely admitted having smoked marijuana with civilian acquaintances and could not guarantee that he would refrain from future indulgences.”  The Board found the applicant’s issue lacked creditability.  Relief is not warranted.

Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560A), effective  15 Jun 87 until 
10 Jan 89, 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