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

 ex-AC2, USNR (TAR)
Docket No. ND02-01107

Applicant’s Request

The application for discharge review, received 020807, requested that the characterization of service on the discharge be changed to honorable.  The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region.  The Applicant did not list any representative on the DD Form 293.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 030515 and the Board determined no impropriety or inequity existed and unanimously voted no change.  However, upon legal review of the case, a possible impropriety was discerned regarding the characterization of service.  Accordingly, the President, Naval Discharge Review Board, directed a document review that was conducted on 030602 before a five-member board.  After a through review of the records, supporting documents, facts, and circumstances unique to this case, NDRB found the discharge was proper and equitable but discerned an impropriety in the characterization of the Applicant’s service.  The Board’s vote was unanimous that partial relief be granted and the character of the discharge shall change.  The discharge shall change to: UNDER HONORABLE CONDITIONS (GENERAL)/MISCONDUCT, authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1.  To Whom It May Concern:

I was discharged under Less than Honorable conditions on 12 Dec 1996.  Since that time I have established a positive trend in becoming a responsible citizen and a productive member of society.  I have maintained a job as a Security Officer for more than six years and as a cable TV Installer for two years.

Since discharge from the military I have become a father (a role I take extremely serious).  I want to provide for my family.  I have now come to a realization that my actions while in the military were wrong, but I must move forward with my life and in order to do so I must take actions to have my discharge upgraded.

I respectfully request that my discharge be reviewed and upgraded to Honorable.  Any consideration you may be able to provide in this matter would be greatly appreciated.

With Best Regards

Documentation

In addition to the service record, and the previous case folder, the following additional documentation, submitted by the Applicant, was considered:

Applicant's DD Form 214
Character reference dated July 18, 2002
Letter to Applicant from National Personnel Records Center dated August 21, 2001

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	871007 - 880509	COG
	Active:   USN			880510 - 930609	HON

Period of Service Under Review:

Date of Enlistment:  930610		Date of Discharge:  961212

Length of Service (years, months, days):

	Active:    03  06  03
	Inactive:  None

Age at Entry:  23			Years Contracted:  4

Education Level:  12			AFQT:  79

Highest Rate:  AC2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.67 (3)	Behavior:  2.87 (3)		OTA:  3.33
Performance:  3.00 (1)	Behavior:  3.00 (1)		OTA:  2.71

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM, Letter of Appreciation

Days of Unauthorized Absence:  *

*Applicant discharged in absentia.

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630620.  Applicant discharged in absentia.

Chronological Listing of Significant Service Events:

930610:	Reenlisted for term of four years at Belle Chasse, LA.

950112:	Retention Warning:  Advised of deficiency (Unauthorized absence on 27 November 1994, resulting in a formal counseling by the Executive Officer on 12 January 1995.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

950404:	Retention Warning:  Advised of deficiency (Unauthorized absence on 27 November 1994, resulting in a formal counseling by the Executive Officer on 12 January 1995.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

960430:	Random urinalysis collected for social security numbers ending in 3 and 5.

960517:	NAVDRUGLAB, Great Lakes, IL reported Applicant's urine sample, received 960502, appears to have had mouthwash added as evidenced by odor and a creatine level less than 20 MG/DL.

960518:	Applicant directed to submit to a probable cause urinalysis test.

960518:	Partial statement from BM2: Dispatched to blood lab with an officer needs assistance call.  As I arrived at the blood lab I observed Applicant on the deck with CMC holding him on the deck.  W_ and D_ were trying to handcuff Applicant.  W_ got Applicant's right arm cuffed and D_ asked myself for handcuffs which I gave to him.  D_ handcuffed Applicant's left wrist then W_ and D_ locked both handcuffs together.  About 10 min later G_ arrived on scene with leg restraints and waist restraints which myself and W_ put on Applicant.  Once they were in place we removed the handcuffs, then G_ and I sat Applicant in a chair and he agreed to give a blood sample and urine sample.  After about 10 min XO and CMC and CDO arrived on scene and a corpsman drew the blood and about 5 min later Applicant gave a urine sample and then the XO ordered us to release him to Applicant's department senior chief.  [Complete statement found in service record.]

960605:	NAVDRUGLAB, Great Lakes, IL reported Applicant's urine sample, received 960524, tested positive for cocaine/THC.

960918:	Partial Statement from AD1: At Branch Medical, Applicant agreed to the urine sample, but was unable to urinate.  He was escorted to the lab for blood to be drawn.  As he was approached by the lab technician, Applicant became combative and refused to cooperate.  Applicant was then advised he was to be placed under military apprehension for failure to obey a direct order from the CO and was directed to stand for handcuffing.  Applicant became agitated, and refused to comply resisting restraints.  AD1 W_ and AVCM were forced to wrestle Applicant to the ground for handcuffing.  Once Applicant relaxed, one arm was removed from cuffs and blood was drawn.  Applicant was then escorted to the head for urine sample.  Applicant was then released to his command.  [Complete statement found in service record.]

961001:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by Navy Drug Lab message 050832Z JUN 96 in which urine sample tested positive for cocaine/marijuana and misconduct due to commission of a serious offense as evidenced by Incident/Complaint Report 18MAY96-00215-073-7D2.

961001:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.  [Date estimated.]

961003:	Memorandum for the record submitted by XO: Applicant provided a previous random sample that was tested by Great Lakes Navy Drug Lab and determined to have had mouthwash added.  Applicant consented to a voluntary urinalysis mid-day on 18 May 1996.  Command Urinalysis Coordinator subsequently informed me that Applicant did not want anyone that was assigned as an observer, to observe him providing his sample.  XO volunteered to act as observer under the premise that Applicant had a specific individual problem with the designated observer.  Upon arriving in the Legal Office, XO asked Applicant what the problem was with the observer.  Applicant stated "I don't want them to look at my dick," XO told him that he would observe him personally and proceeded with Applicant to the men's head.   Applicant entered the head, turned on the water faucet in the sink nearly full force and walked over to a urinal while standing at the urinal he did not urinate and stated, "So now you're going to look at my dick."  Informed Applicant as the observer it was required to physically witness him providing the sample.  He stated, "I don't want to do it like this."  Returned to the legal office.  Applicant was read a direct order from the Commanding Officer that he was ordered to provide sample.  Returned to the men's head.  Again, Applicant turned on the water faucet in the sink nearly full force and walked over to a urinal.  Applicant refused to provide the sample.  Applicant was informed it was not optional, and he was under a direct order from the Commanding Officer to provide a sample.  Applicant still steadfastly refused.  Returned to legal office and informed legal and urinalysis staff that Applicant had refused to provide a sample.  Attempted to observe Applicant one more time to allow him to comply with the CO's order after still refusing to provide a sample, the CO ordered that Applicant be escorted to medical for a blood sample to be taken.

961004:	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, commission of a serious offense, to wit: violation of an other lawful order, but has not committed misconduct due to commission of a serious offense, to wit: assault, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

961114:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use) concurring with administrative discharge board's findings and recommendations.

961212:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

970121:	Drug and Alcohol Abuse Report: Cocaine abuse, ashore off duty.  Abuse denied.  Probable cause urinalysis on 960605.  CAAC recommended separation.  Physician found Applicant not dependent and recommended separation.  Commanding Officer recommended separation.  Comments: No potential for further naval service.

981116:	NDRB documentary record review Docket Number ND98-00397 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged, in absentia, on 961212 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 equitable but not proper (C and D).

Issue 1.  There is credible evidence in the record that the Applicant used illegal drugs.  Drug abuse warranted processing for separation, normally under other than honorable conditions.  In the Applicant’s case, the Board found that the urine sample that determined the Applicant used cocaine and marijuana was collected as a result of a command directed urinalysis.  Command directed urinalyses provide a basis for administrative separation but cannot be used to characterize service.  Therefore, the Applicant’s discharge under other than honorable conditions is improper.  The Board found that the Applicant’s illegal drug use is properly characterized as under honorable conditions (general).  Partial relief is therefore granted.

The Applicant’s evidence of post-service conduct presented during his personal appearance hearing was found not to mitigate the offense for which he was discharged and to upgrade his discharge to reflect honorable service would be inappropriate.  Relief is not warranted on this basis.

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