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

ex-MMFN, USN
Docket No. ND01-00161

Applicant’s Request

The application for discharge review, received 001127, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to Secretarial Authority.  The applicant requested a personal appearance hearing in the Washington Nation Capital Region.  The applicant listed a civilian counsel 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 010510.  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 and reason for discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  Applicant, SSN, received an other than honorable discharge after waiving his rights to a hearing.

2.  The sole basis for his discharge was his statement that he was in the presence of others who used marijuana and that he took a single hit on a pipe that may or may not have contained a residual amount of marijuana.

3.  Applicant received Article 15 punishment for failure to report marijuana use by other service members and for use of marijuana.

4.  There was a factual issue as to whether use actually occurred and the "'confession" as to use was at best an uncertain statement and was uncorroborated.

5.  These facts give rise to multiple questions:

a.  Failure to report marijuana use does not warrant an OTH discharge.  Since the actual use of marijuana was in dispute why would military counsel advise Applicant to waive a board when the worst result of a board was an OTH?  This is an ineffective assistance of counsel issue.

b.  Can an uncorroborated confession be a basis for imposition of punishment under the UCMJ in an Article 15 forum?

c.  Why was there no command directed urinalysis to confirm marijuana use by Applicant?

d.  Do the circumstances warrant a OTH discharge?

6.  We enclose for your review the following documents:

a.  DD 214
b.  Applicant's statement
c.  Investigating Officer Report
d.  Detective's Report
e.  Article 15
f.  Administrative Separation Documents including Waiver of Rights
g.  Statement of other suspects

7.  Our position simply put is that the forum to determine whether Applicant used marijuana was in an Administrative Separation Board.  Counsel's advice to waive a board was an outcome determinative error in judgment for the following reasons:

a.  The OTH which could have been given by a board was the same OTH derived from a waiver.  There was no reason to waive a board.

b.  At a hearing facts could have been adduced with witnesses under oath to determine whether Applicant actually used marijuana or merely held a pipe to his lips.

c.  The facts taken in the light most favorable to the government could have resulted in a General Discharge at a board.

d.  There is no evidence that any confession by Applicant was corroborated.  Respectfully submitted,

Documentation

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

Copy of DD Form 214
Nineteen pages from applicant's service record (2 copies)
Statement from applicant's father
Copy of an article "Post Traumatic Stress Disorder Among Vietnam Veterans: The Inner War"

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	960131 - 960915	COG

Period of Service Under Review:

Date of Enlistment:  960916		Date of Discharge:  971104

Length of Service (years, months, days):
	Active:    01  01  19
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  94

Highest Rate:  MM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMA			Behavior:  NMA		OTA:  NMA

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 3630620.

Chronological Listing of Significant Service Events:

971009:	NJP for violation of UCMJ, Article 92: Violate a lawful general regulation by wrongfully failing to report the possession of marijuana and drug paraphernalia by two MM3's on 18Sep97, violation of UCMJ, Article 112A: Wrongfully use marijuana.
	Award: Forfeiture of $250 per month for 2 months, restriction and extra duty for 45 days, reduction to MMFN and oral admonition.  No indication of appeal in the record.

971023:	Drug and Alcohol Abuse Report: Marijuana abuse, less than monthly, ashore off duty.  Military police on 970618.  CAAC recommended separate not via VA hospital.  Clinical psychologist found not dependent and recommend separate not via VA hospital.  Commanding officer recommended separate.  Comments: The reason the date of the report and the date of incident do not coincide, is that SNM was not identified and/or processed for mast on the 9th of October 1997. The SNM displays no potential for further Naval service.

971023:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and drug abuse as evidenced by all punishments under the UCMJ in your current enlistment.

911023:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

971024:	Commanding officer directed discharge under other than honorable conditions by reason of misconduct due to commission of a serious offense and drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 971104 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 and reason for discharge was proper and equitable (C and D).

In the applicant’s issue 1, the Board agrees with the applicant’s statement that the applicant waived his rights.  This is a non-decisional issue for the Board.

In the applicant’s issues 2 through 4, the applicant admitted to his use of marijuana.  He was found guilty at CO’s NJP for wrongful use of marijuana.  During the timeframe the applicant was discharged, a member was mandatorily processed for separation based upon one or more military offenses or civil convictions, or action taken which is tantamount to a finding of guilt (i.e. admission or entry in pretrial intervention or similar programs with civilian authorities) for the following:  Drug Abuse-The illegal or wrongful use or possession of controlled substance(s) and/or Drug Paraphernalia-All equipment, products, and materials that are used, intended for use, or designed for use in injecting, ingesting, inhaling, or otherwise introducing into the human body controlled substances in violation of the law.  The applicant admitted to both use and possession of marijuana and drug paraphernalia.  Therefore, no relief will be granted based on this issue. 

In response to the applicant’s issue 5, discharge characterizations for misconduct due to drug abuse are normally under Other Than Honorable conditions.  The applicant admitted guilt to both possession and use of marijuana.  Under Navy directives, a urinalysis is not necessary for administrative separation based on misconduct due to drug abuse.  The Navy’s basis for separation is based on drug abuse/use, drug paraphernalia or drug trafficking.  The applicant admitted guilt to possession and use of marijuana, in addition to possession of drug paraphernalia.  No relief will be granted based on this issue. 

The applicant’s issue 6 is a non-decisional issue.  The Board’s standard procedure is to review all documents submitted by the applicant, in addition to the service and medical records as part of the documentary review.

In response to the applicant’s issue 7, the Board found that the applicant freely waived his rights to counsel and to an Administrative Discharge Review Board.  Although it is true that the applicant could have received a general (under honorable conditions) discharge characterization at an Administrative Discharge Board, characterizations for misconduct due to drug abuse are normally under other than honorable conditions.  The Board found that the discharge was proper and equitable.  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 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 14, effective 
03 Oct 96 until 11 Dec 97, Article 3630620  SEPARATION OF ENLISTED PERSONNEL 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