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

ex-EM3, USN
Docket No. ND03-01272

Applicant’s Request

The application for discharge review was received on 20030728.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to mutual agreement.  The Applicant requests a personal appearance hearing before the board in the Washington National Capital Region.  The Applicant listed civilian counsel as the representative on the DD Form 293.  In the acknowledgement letter, 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 review was conducted in Washington, D.C. on 20040526.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the character and the reason for discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Issues submitted by Applicant’s counsel/representative (CIVILIAN COUNSEL):

1.  “Whether the JAG officer properly and effectively represented Applicant at the time of his discharge.  There was no effort to procure medical evidence to show that his THC positive drug test result could have been caused by the high dose of ibuprofen he was taking after the extraction of wisdom teeth.

2.  “Whether the fact that a false positive THC can readily result from a dose of ibuprofen was considered in the granting of the other than honorable discharge.”

3.  “Whether Applicant was in fact taking ibuprofen for a lawful purpose (i.e., relief of pain after extraction of wisdom teeth) at the time of the test rendering the THC positive test results.”

4.  “Whether the JAG officer failed to properly contest the test results and provided inaccurate information to Applicant which caused him to waive his board.”

5.  “Whether Applicant was medically fit for military duty at the time of the test (this is confined to the date of the test, and not application for physical or mental disability).”

6.  “Whether Applicant’s reenlistment bonus was property attempted to be recouped (issue preserved for BCMR only).”

7.  “Whether Applicant’s superior service record would justify an honorable discharge.”

8.  “Whether the Navy’s policy of not giving an honorable or general discharge to anyone who receives a positive THC test is constitutional.”

9.  “Whether Applicant was informed of the Navy’s policy of not giving an honorable or general discharge to anyone who receives a positive THC test prior to his waiver of his board.  If he had been informed of this policy, he would not have waived his board.”

10.  “Whether the Applicant’s exceptional character and absence of any arrest except for a minor traffic violation either in service or after leaving service evidences such good character that the discharge is inequitable.”

Documentation

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

Cover letter from Applicant’s civilian counsel, dated April 29, 2003

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	971126 - 980107	COG
	Active:   USN			980108 - 000907	HON

Period of Service Under Review:

Date of Enlistment:  000908		Date of Discharge:  010205

Length of Service (years, months, days):

	Active:    00  04  28
	Inactive:  None

Age at Entry:  24			Years Contracted:  6

Education Level:  12			AFQT:  92

Highest Rate:  EM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (1)	Behavior:  1.00 (1)		OTA:  2.50

Military Decorations:  None

Unit/Campaign/Service Awards:  NEM, SSDR

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 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events:

000908:	Applicant reenlisted for 6 years.

001018:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 001010, tested positive for THC.

001102:	NJP for violation of UCMJ, Article 112A: Wrongfully use marijuana between September and October 2000.
	Award:  Forfeiture of ½ pay per month for 2 months, reduction to EM3.  No indication of appeal in the record.

010111:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

010111:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

010116:	Applicant requested review by General Court-Martial Convening Authority of administrative separation.

010118:	Commanding Officer recommended discharge general (under honorable conditions) by reason of misconduct due to drug abuse (use).  Commanding Officer’s comments (verbatim): It was determined that EM3 H_ (Applicant) lacks the potential for continued naval service.  Petty Officer H_ (Applicant) is an outstanding performer except for this one incident.  He has never had any problems and was thought very highly of by the USS MINNEAPOLIS-ST. PAUL (SSN 708).  Per reference (a) (MILPERSMAN 1910-146), he is being processed for administrative separation.  I recommend that he be separated from the United States Navy with a General discharge.

010119:	COMSUBGRU TWO 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 20010205 under other than honorable conditions for misconduct due to drug abuse (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).

Issues 1-3, 5.  There is credible evidence in the record that the Applicant used illegal drugs.  Mandatory processing for separation is required for sailors who abuse illegal drugs.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  The evidence of record does not demonstrate that the urinalysis results were not valid or that the urinalysis was improperly administered.  Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

Issue 4.  The Board found that the evidence of record shows the Applicant’s administrative discharge was proper and equitable.  The Applicant’s allegations that, “…the JAG officer failed to properly contest the test results and provided inaccurate information to Applicant which caused him to waive his board” does not refute the presumption of regularity.  Relief denied.

Issue 6.  NDRB review is limited to a determination as to whether the member’s case was procedurally correct, and whether his case received the same disposition as those similarly situated.

Issues 7, 10.  When the service of a member of U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable.  An Under Other Than Honorable Conditions discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record.  The Applicant’s service record is marred by award of nonjudicial punishment (NJP) for illegal drug use.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief is not warranted.

The Applicant’s NJP on 2 Nov 2000 was for wrongful use of marijuana, thus substantiating the misconduct for which he was separated.  The summary of service clearly documents that misconduct due to drug abuse was the reason the Applicant was discharged.  No other Narrative Reason for Separation could more clearly describe why the Applicant was discharged.  Separation under these conditions generally results in characterization of service under other than honorable conditions.

Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable.  Relief denied.

The following is provided for the edification of the Applicant.  Normally, to permit relief, a procedural error or inequity must have occurred during the discharge process for the period of enlistment in question.  The Board discovered no such errors after a review of Applicant’s case.  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 civilian life subsequent to leaving naval service.  The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle.  As of this time, the Applicant has not provided any documentation for the Board to consider.  Therefore, no relief is appropriate.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide documentation to support any claims of post-service accomplishments or any other evidence related to his her discharge at that time.  Representation at a personal appearance hearing is recommended but not required.

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 "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