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

 ex-SA, USN
Docket No. ND01-01147

Applicant’s Request

The application for discharge review, received 010904, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to Secretarial Authority or Completion of Required Service.  The applicant requested a personal appearance hearing discharge review.  The applicant designated civilian counsel as his representative on the DD Form 293.  In the acknowledgement letter to the applicant, he 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 020517.  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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  The Petitioner, having no appropriate administrative remedy other than a direct petition to the DRB, seeks to have his records corrected to address an injustice that occurred while he was in an Active Duty assigned to the USS SAN JACINTO (CG-56).

2.  While assigned to this command, the Petitioner was processed for administrative separation by reason of Misconduct (Drug Abuse).

3.  The Petitioner invoked his right to an administrative discharge board, with these proceedings being held on 21 Jul 00.

4.  This board recommended that the Petitioner be separated from the Naval Service with a General Discharge under Honorable Conditions by Reason of Misconduct (Drug Abuse).

5.  Although the Petitioner filed a Letter of Deficiency appealing this decision, he was separated from the naval service with a General Discharge for Misconduct.  See Enclosures One and Two.

6.  The Petitioner seeks to have his discharge upgraded to an Honorable Discharge, with the basis for separation being changed from Misconduct to Secretarial Authority or Completion of Required Service.

II. Outline of Issues

6.  The key issue in the board was whether the Petitioner had been involved in the attempted purchase or use of narcotics in violation of Article II 2 (a) of the UCMJ.

7.  The Petitioner had also previously undergone nonjudicial punishment for missing movement, a fact that was never in dispute.

8.  Pursuant to an NCIS investigation, the Petitioner had nonjudicial punishment imposed upon him for an alleged violation of Article 112(a).

9.  This punishment was imposed against the pleas of the Petitioner, as he had steadfastly maintained his innocence of any such act during both nonjudicial punishment and the subsequent board proceedings.

10. This second nonjudicial punishment was used as evidence of a pattern of misconduct, providing justification for processing him for both a pattern of misconduct and drug abuse.

11.  During the administrative discharge board, Counsel for the Petitioner produced evidence calling into question the underlying basis for the allegations of wrongful use or possession.

12.  The Petitioner called several witnesses concerning his good military character and honesty, as well as the fact that he would not knowingly use or possess narcotics.

13.  With particularity, the Petitioner produced an affidavit from his accuser recanting his previous statements against him.  See Enclosure Three.

14.  This statement eliminated any evidence against the Petitioner that would have justified either the previous mast proceedings for a violation of Article I I 2(a) or the allegations that he had engaged in a pattern of misconduct.

15.  Counsel for the Respondent also demonstrated marked discrepancies between an NCIS transcript of a tape alleged to have incriminated the Petitioner and the actual tape itself.  See Enclosures Four and Five.

16.  There was no evidence on either the tape or the transcript itself corroborating the identity of the Petitioner.

17.  Instead, the informant simply stated the name of the person that he had allegedly been speaking with during the conversation.  See Enclosures Four and Five.

18.  The Petitioner also produced several witnesses to verify that he had withdrawn funds from an ATM machine that day to repay debts owed to them.

19.  This evidence is contained in the tapes of the board proceedings, copies of which have not been provided to the Petitioner despite his repeated requests for these tapes.

20.  All of the witnesses called by the Petitioner at the board attested to his good military character, honesty and that he abhorred the use of drugs.

21.  In fact, one of these witnesses testified that he went to his command to seek help in moving from an apartment shared with another crew member because he suspected that drugs were being used on the premises.

22.  Although we were not provided the tapes of these proceedings despite numerous requests for these items, this individual DC I B_____, has provided us with an affidavit that verifies these facts as sated above.  See Enclosure Six.

23.  DC I B_____ was the Petitioner's supervisor during this period and makes it very clear that the Petitioner sought help to avoid compromising situations involving drugs, thus demonstrating that he would not be likely to have engaged in the knowing use or possession of drugs in violation of Article 112(a) of the UCMJ.  See Enclosure Six.
24.  The Petitioner also sought the advice and assistance of the ship's Chaplain in this matter.  See Enclosure Seven.

25.  LCDR C____, the ship's chaplain during the time period at issue, attests to the same facts as DC I B_____.  See Enclosure Seven.

26.  Taken as a whole together with the affidavit of the informant, SK3 E___, recanting the only evidence against the Petitioner, it is clear that the board's recommendation and the subsequent agency action were against the weight of the evidence. .

27.  Given that the Petitioner demonstrated that there was no evidence showing wrongful use or possession of drugs, there was not a sufficient basis for finding either a pattern of misconduct or misconduct due to drug abuse.

28.  Since there was insufficient evidence to support a finding of misconduct, the agency action in separating the Petitioner with a General Discharge for Misconduct constitutes clear and unmistakable error.

29.  The Petitioner therefore seeks your assistance in correcting this matter by upgrading his discharge on review.

III.  SUMMARY OF RELIEF REQUESTED BY PETITIONER

1.  The Petitioner, by and through his counsel, seeks to have the character of his discharge upgraded to an Honorable discharge.

2.  The Petitioner also requests that you recommend that the basis for separation be changed to Secretarial Authority or Completion of Required Service.

3.  The Petitioner respectfully requests that he be provided the opportunity to appear before you to state his case.

4.  The Petitioner requests that a speaker phone be available on the date of the hearing for telephonic testimony by any witnesses unable to appear due to exigencies of military service.

5.  The Petitioner also requests that you direct that the command provide him with copies of all documents, exhibits and the taped proceedings of the administrative discharge board that was held by the ship on 21 Jul 00, as these items are necessary for him to effectively plead his case to you.

6.  The Petitioner further requests that he be provided with the agency record concerning any and all correspondence or other items considered by the separation authority in acting upon his Letter of Deficiency in this matter.

7.  The Petitioner also requests that he be provided with any and all other relief as the Board may deem appropriate to the facts and circumstances of this case.
Respectfully Submitted, S_ L_ G_ (Applicant) By and Through His Counsel, J_ B_ G_, Attorney and Counselor at Law

Documentation

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

Copy of DD Form 214
Letter of Deficiency, consisting of six pages.
Affidavit of SK3 E_, consisting of two pages.
Tape of NCIS Investigation (will be presented live during hearing).
Transcript of tape, consisting of fourteen pages.
Statement of DC l T_ G. B_, consisting of two pages.
Statement of LCDR P_ C_, consisting of two pages.
Copy of Army Reserve Identification card dated April 26, 2002
Copy of enlistment document for the Army National Guard dated April 15, 2002
Copy of petition for a name change decreed on June 4, 2001

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	970908 - 970929	COG

Period of Service Under Review:

Date of Enlistment:  970930		Date of Discharge:  000905

Length of Service (years, months, days):

	Active:    02  11  06
	Inactive:  None

Age at Entry:  21			Years Contracted:  4 

Education Level:  9 + 2½ yrs of College Courses

AFQT:  68

Highest Rate:  DCFN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.0 (2)	Behavior:  3.5 (2)		OTA:  3.75 (5.0 eval)

Military Decorations:  None

Unit/Campaign/Service Awards:  AFEM, NUC, Navy "E" Ribbon, LOC

Days of Unauthorized Absence:  2

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events:

000320:	Unauthorized absence from USS SAN JACINTO, NavSta Newport, RI as of 0700.

000320:	Missed sailing of vessel.

000322:	Surrendered military control at 1400, 00MAR22 onboard USS SAN JACINTO, Norfolk, VA. (2 days)

000404:	NJP for violation of UCMJ, Article 86:  unauthorized absence; violation of UCMJ, Article 87: missing movement.
	Award:  Forfeiture of $500 per month for 2 months, restriction and extra duty for 45 days, reduction to E-2 (suspended for 6 months).  No indication of appeal in the record.

000615:	NCIS Tape Recording Report.

000615:	Punishment of reduction in rate to DCFA suspended at NJP of 00ARR04 vacated this date due to continued misconduct.

000615:	NJP for violation of UCMJ, Article 112A: wrongful use of controlled substance - ectasty.
	Award:  Forfeiture of $763 per month for 2 months, restriction and extra duty for 45 days.  No indication of appeal in the record.

000619:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service possible under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to pattern of misconduct.

000619:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

000721:	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 and misconduct due to pattern of misconduct, that the misconduct warranted separation, and recommended discharge with a General (under honorable conditions).

001012:	Commanding Officer (USS SAN JACINTO) advised COMCARGRU TWO that applicant was discharged with a 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 000905 with a 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).

The applicant’s legal brief consists of three sections:  1. Remedy Sought, 2. Outline of issues, and 3. Summary of Relief Requested by Petitioner.  

In Remedy Sought (Issues 1-6), the applicant’s representative requests relief of an injustice that occurred while on active duty.  Remedy Sought outlines the applicant’s discharge proceedings:  the Administrative Board, Recommendation by the Administrative Board (separation with characterization of General Under Honorable conditions), the Letter of Deficiency appealing the Admin Board’s recommendation, and requests an upgrade in the discharge with the reason for separation being changed from misconduct to Secretarial Authority or Completion of Required service.  The NDRB carefully reviewed the applicant’s discharge and found nothing in the record, or taped recordings provided, that made the discharge improper or inequitable.  In its presumption of regularity the NDRB presumes the discharge authority gave due consideration to the applicant’s letter of deficiency.  The Board found no inequity or impropriety in the discharge, and, accordingly found no basis for the reason for discharge to change.  Relief is not warranted.

The applicant’s “Outline of Issues”, (Issues 6-29), take issue with the applicant’s NJP (for violation of UCMJ Article 112a), and the Administrative Board.  The NDRB in its presumption of regularity found no error in the discharge proceedings.  Clearly, the applicant was found guilty at NJP of violation of UCMJ Article 112a.  Neither the NJP nor the Administrative Board require the standard of proof as a court martial.  Rules of evidence do not apply.  The applicant’s issue with witness’s recantation of statements is not relevant for the NDRB’s considerations in equity and propriety.  Relief is not warranted.

The applicant’s third section (Issues 1-7), Relief Requested By Petitioner, states that he requests to have the character of discharge changed to Honorable, the reason changed to Secretarial Authority or Completion of Required Service.  The NDRB, under its responsibility to examine the propriety and equity of an applicant's discharge, will change the reason for discharge if such a change is warranted.  The summary of service clearly documents that drug abuse was the reason the applicant was discharged.  No other Narrative Reason for Separation could more clearly describe why the applicant was discharged.  To change the Narrative Reason Separation would be inappropriate.

The applicant requested an opportunity to appear before the Board, requested a speaker phone be available at the hearing, and that the NDRB direct the discharging command to provide him with copies of all documents, exhibits and the taped proceedings of the administrative discharge board that was held by the ship on 21 Jul 00, as these items are necessary for him to effectively plead his case to you. And he be provided with the agency record concerning any and all correspondence or other items considered by the separation authority in acting upon his Letter of Deficiency in this matter.  The applicant was advised on 010906 that the NDRB conducts a documentary review prior to a personal appearance hearing.  The applicant may file a DD 293 requesting a personal appearance hearing prior to 15 years from date of discharge.  Regarding the use of a speaker phone at the personal appearance hearing, the applicant may make such request after a personal appearance hearing is scheduled.  The President of the Board will decide on witness testimony prior to the hearing.  The NDRB reviewed the applicant’s official service record and the tapes provided by the counsel.  The NDRB will not seek additional information from the discharge authority as the record is complete.  Concerning the request for documentation concerning “any and all correspondence or other items considered by the separation authority in acting upon his Letter of Deficiency in this matter”  the NDRB reviewed the Commanding Officer’s address of the Letter of Deficiency in the discharge package.  The NDRB will not request additional documentation in order to determine the propriety or equity of the discharge.  As previously stated, the NDRB presumes regularity in the conduct of government affairs.  The applicant’s service record is complete.  The issues the counsel for the applicant raises concerning the procedures at the Administrative Board, witness testimony etc, are not relevant issues for this Board’s consideration.  The applicant has raised no issue that demonstrates that the discharge was improper or inequitable.  Relief is denied.

The NDRB is authorized to consider post-service factors in the re characterization of a discharge.  There is no law or regulation which provides that an unfavorable discharge may be upgraded based solely on the passage of time, or good conduct in the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, may be considered by the NDRB.  The applicant failed to provide documentary evidence to demonstrate his sobriety, positive community service, employment history, and clean police record.  Relief is not warranted.

The applicant is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is highly recommended.
Pertinent Regulation/Law (at time of discharge)
 
A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 27, effective 27 March 2000 - 11 Feb 2001, Article 1910-146 (formerly 3630620), Separation 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 "afls10.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