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

ex-SR, USN
Docket No. ND00-01070

Applicant’s Request

The application for discharge review, received 000920, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a documentary record discharge review.  The applicant listed AMERICAN LEGION as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010313.  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.  There is no Military Record of NJP /Article 15.  There is one incident only dated on or about June 16, 1987 in which refer to this same case.

2.  Pursuant to the Naval Military Manual 3630620 (2b) an Honorable, General, or Entry Level Separation under guidance in Article 3610300 when separation process is based solely on urinalysis test results which, under OPNAVINST 5350.4, may not be used to characterize service.  It is clear that H____ characterize service was based on OPNAVINST 5350.4 (Exhibit A) a urinalysis test, in which he was issued an under other than Honorable Discharge in violation of this Navy Regulation.

3.  In the case at Bar, the Department of Navy noted that the alleged urinalysis (3630620) failed to determine if separation is mandatory.  Failed to determine if counseling and / or rehabilitation was applicable prior to separation. 

4.  Petitioner states that at all time relevant he was denied the right to counsel and that no one explained his rights, in clear violation of MILPERSMAN 3630650 (3).  There was an investigator whom took part in the tribunal that heard this case.  But, there was never anyone informing me of my rights and alternatives that I had in this matter.  However, there was no court/hearing stenographer at the proceedings and the court did not have the authority to discharge him with a under other than Honorable discharge based on a mere urinalysis test.  The urinalysis was compelled without probable cause or justification and used without further cause to discharge this petitioner as in Giles v. Secretary, 627 F.2d 554 (1980), in which the court modified and remanded.

5.  Petitioner states that the Department of Navy did not follow it own regulation in this case, by violation of the Naval Military personnel Manual with deliberate indifference.  In Blassingame vs Secretary of the Navy, 866 F.2d 556 (1989) the court held that error of non-compliance with the terms of its Separation Manual, believed violated the Administrative Procedure Act.  There is no Notifications of rights received by this petitioner.  Further, in White v. Secretary of the Army, 878 F.2d 501 (1989) the court held that procedural impropriety was not correctable and service member would be treated as it he had completed service.

6.  This petitioner prays for reinstatement, back pay, and restoration of all rights and privileges an a Honorable Discharge for the convenience of the Government.

7.  Further, this petitioner claims that discrimination was part of the violations that occurred, the majority of young African American men had no background in law or due process rights, and we were given bad discharges on regular basis.  This discharge was unfair compared to the type given to others then or today for the same conduct.  I Swear that all the above information is True to the best of my knowledge.

Documentation

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

Copy of DAAR (Exhibit A)
Copies of DD Form 214 (2)

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	870121 - 870122	COG

Period of Service Under Review:

Date of Enlistment:  870123		Date of Discharge:  871014

Length of Service (years, months, days):

	Active:    00  08  22
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 

Education Level:  12			AFQT:  43

Highest Rate:  SR

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.20 (1)	Behavior:  2.80 (1)		OTA:  NOB

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:

870129:	Applicant briefed on Navy’s Drug and Alcohol Abuse Policy as set forth in OPNAVINST 5350.4.

870518:	Retention Warning:  Advised of deficiency (Failure to go or leaving place of duty and insubordinate conduct towards a warrant, noncommissioned, or petty officer), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

870616:	NJP for violation of UCMJ, Article112a: Wrongful use of cocaine.
Award:  Forfeiture of $329.00 per month for 2 months, restriction to NAVSUBASENLON CT for 45 days, extra duty for 45 days.  No indication of appeal in the record.

870707:	Medical evaluation for drug abuse found the applicant to be not drug dependent, not amenable, recommended for separation not via VA Hospital.  Additional Comments: Patient claims he used cocaine only once.  I feel he is not psychologically dependent.

870730:	DAAR indicates applicant is not dependent, not amenable, recommended for separation not via VA Hospital.

870810:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

870831:  	Applicant advised of his rights and having elected 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.

870909:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

871003:	CNMPC 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 871014 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 first issue states:  “There is no Military Record of NJP /Article 15.  There is one incident only dated on or about June 16, 1987 in which refer to this same case.”  The NDRB found record of the NJP on a Court Memorandum on 16 June 87 for Violation of UCMJ Article 112a.  Relief is not warranted.

The applicant’s second issue states:  “Pursuant to the Naval Military Manual 3630620 (2b) an Honorable, General, or Entry Level Separation under guidance in Article 3610300 when separation process is based solely on urinalysis test results which, under OPNAVINST 5350.4, may not be used to characterize service.  It is clear that H____ characterize service was based on OPNAVINST 5350.4 (Exhibit A) a urinalysis test, in which he was issued an under other than Honorable Discharge in violation of this Navy Regulation.”  After careful review of the applicant’s service record and type of drug test (Service Directed) that resulted in the applicant’s NJP and discharge, the Board found that based on OPNAVINST 5350.4 disciplinary proceedings and characterization of service as Other Than Honorable were appropriate.  Relief based on this issue is not warranted.

The applicant’s third issue states:  “In the case at Bar, the Department of Navy noted that the alleged urinalysis (3630620) failed to determine if separation is mandatory.  Failed to determine if counseling and / or rehabilitation was applicable prior to separation.”  The Board found this issue without merit.  Under 3630620, separation processing is mandatory and the characterization of discharge is normally Other Than Honorable.  The applicant’s case met with the guidelines set forth in 3630620 as well as OPNAVINST 5350.4.  The record further shows the applicant was screened for drug dependence by LT W_F_N_, LT, MC, USNR on 7 July 1987 and found not dependent.  Relief is not warranted. 

The applicant’s fourth issue states:  “Petitioner states that at all time relevant he was denied the right to counsel and that no one explained his rights, in clear violation of MILPERSMAN 3630650 (3).  There was an investigator whom took part in the tribunal that heard this case.  But, there was never anyone informing me of my rights and alternatives that I had in this matter.  However, there was no court/hearing stenographer at the proceedings and the court did not have the authority to discharge him with a under other than Honorable discharge based on a mere urinalysis test.  The urinalysis was compelled without probable cause or justification and used without further cause to discharge this petitioner as in Giles v. Secretary, 627 F.2d 554 (1980), in which the court modified and remanded.”  The record clearly shows the applicant gave up his right to talk with an attorney on 870612 prior to his NJP on 870616.  The record shows he elected to speak with counsel on 31 Aug 87 (for discharge), and further shows that after consulting with an attorney, he understood his privileges and discharge proceedings.  Additionally, the type of urinalysis the applicant took, “service directed “A” School”, allows for evidence to be used in disciplinary proceedings as well as usable for the characterization of service (OPNAVINST 5350.4).  Relief based on this issue is denied.

The applicant’s fifth issue states:  “Petitioner states that the Department of Navy did not follow it own regulation in this case, by violation of the Naval Military personnel Manual with deliberate indifference.  In Blassingame vs Secretary of the Navy, 866 F.2d 556 (1989) the court held that error of non-compliance with the terms of its Separation Manual, believed violated the Administrative Procedure Act.  There is no Notifications of rights received by this petitioner.  Further, in White v. Secretary of the Army, 878 F.2d 501 (1989) the court held that procedural impropriety was not correctable and service member would be treated as it he had completed service.”  The Board found no error of non-compliance in the applicant’s service record.  The applicant was notified of consideration for discharge on 12 Aug 87, and after consulting with an attorney signed his Statement of Awareness And Request For, Or Waiver Of, Privileges on 31 Aug 87.  The Board found the applicant was afforded due process and the separation was conducted in accordance with the regulations.  Relief is not warranted.

The applicant’s sixth issue states:  “This petitioner prays for reinstatement, back pay, and restoration of all rights and privileges an a Honorable Discharge for the convenience of the Government.”  The NDRB can not make findings or effect reinstatement, back pay and restoration of all rights and privileges as requested.  The applicant may petition the BCNR for relief in this matter.  Relief by the NDRB is not warranted.

The applicant’s seventh issue states:  “Further, this petitioner claims that discrimination was part of the violations that occurred, the majority of young African American men had no background in law or due process rights, and we were given bad discharges on regular basis.  This discharge was unfair compared to the type given to others then or today for the same conduct.  I Swear that all the above information is True to the best of my knowledge.”  The applicant failed to provide any documentation to support his claim that he was discriminated against.  The applicant was afforded due process, and the record shows, the applicant exercised his rights in the discharge proceedings.  The NDRB found that contrary to the applicant’s assertion that his discharge was unfair compared to the type given to others then or today for the same conduct, the discharge was consistent with regulations in 1987 as well as today.  Relief is denied.

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