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

ex-DA, USN
Docket No. ND04-00884

Applicant’s Request

The application for discharge review was received on 20040428.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20050322.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board discovered no impropriety or inequity in the Applicant’s discharge processing.  The Board’s vote was unanimous that the character and reason for the discharge shall not change.  The discharge shall remain:  UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-164.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

“1.  The discharge is improper because strict due process was not applied to avoid improperly labeling a sailor as a drug user. 

2.  I was not provided the proper due process to appeal the NJP findings.

3.  See attached letter.

#6 (continuation of issues)

I am writing to request your assistance in righting a wrong.  I believe an error in due process has been made, depriving me of significant benefits, such as Montgomery G.I. Bill education assistance, in addition to the privilege of receiving a Naval Discharge that reflects the nearly 6 years I served my country with pride and honor.

Until June 26, 2003 I served on board the USS Emory S. Land.  On June 18, 2003 the commanding officer of the USS Emory S. Land took me and 9 other sailors to Non-Judicial Punishment (NJP) for alleged drug use.  I understand wrongful drug use is a serious matter and must be dealt with by serious measures.  As it is a serious matter, with such serious consequences, strict due process must apply to avoid improperly labeling a sailor as a drug user.  Unfortunately, I believe I was not provided the proper due process and therefore respectfully appeal the NJP findings.  I realize this appeal is outside the proper time period; however, as I was immediately removed from my duty station in Augusta Bay, Sicily while the ship was visiting that port and sent to Anacostia, Virginia for administrative separation on June 22, 2003, I was unable to seek assistance in filing a timely appeal.

Prior to my NJP, the ship’s Legalman Chief advised me, and the other 9 sailors, of the NJP process.  However, I did not receive the process promised.  It was clear that some of those who went to NJP with me were in fact drug users.  Some even confessed.  I, on the other hand, am innocent.  I believe in the zeal to punish those guilty, an error was made.  The Master-at-Arms referred to me as a “repeat offender,” even though I had never been in any trouble before.  Furthermore, I did not have an opportunity to review the evidence against me.  I was told another sailor, (the arrested sailor—HT3 D_), arrested with drugs gave the Master-at-Arms my name and the name of approximately 20 other sailors as drug users.  I was told that the arrested sailor, HT3 D_ had seen me using drugs at a party with other USS Emory S.  Land sailors; however, I was not at the same party that the arrested sailor, HT3 D_ was at.  I never was given the opportunity to dispute this or to question the other unnamed sailor who accused me.  I was never given the opportunity to call witnesses who could have confirmed I was not at the same party as HT3 D_ who claimed to see me using drugs.  Moreover, I voluntarily provided a urine sample for drug testing after being accused.  I was informed of the negative result just prior one day to the NJP.  9 other sailors at NIP with me also had negative urinalysis results - no drugs present in their system - and possibly have been falsely found guilty, as I have.  Unfortunately, unlike sailors assigned to duty stations ashore, sailors assigned to ships are not entitled to demand that accusations be proved at court-martial.

After NJP, I was advised by the same ship’s Legalman Chief regarding my appeal rights and the Administrative Separation process to follow.  I was told that any appeal would fall on deaf ears.  I was told that if I asserted my right to an Administrative Separation hearing, the Commanding Officer would handpick the board members and ensure I received an Other-than Honorable (OTH) discharge.  By regulation, a determination must be made whether or not to “fire” a sailor found guilty of wrongful drug use.  This determination I typically made during a hearing at which time a characterization of service is also determined.  When I went to NJP I had 5 months left in the Navy.  I enjoyed my time in the Navy; however, I was looking forward to returning home to Louisiana to be with my family and to continue my education.  Based on the information provided by the Legalman Chief, if I fought the separation, I would get the OTH either way, and I would waste my time and the Navy’s time.  Frankly, after my experience at NJP, I just wanted to go home.  Although innocent, at that time I felt it was better to give in and take the OTH.

(Unfortunately, I never had the opportunity to speak with an unbiased advisor.) I was not advised of the numerous negative impacts an OTH would carry.  I was not advised that I would lose my Montgomery G. I. Bill benefits, that the Navy would return me to the continental U.S. and leave me to find my way home at my own expense, as I was “other-than-honorable.”  It is only now, after suffering the humiliation and indignity of being forced off the USS Emory S.  Land with less than 15 minutes notice; having my personal belongings left behind in Italy for someone else to pack; being sent to Anacostia Naval Station for out-processing with little direction, no transportation or point of contact; and again being ordered off military property with no notice and no means of getting home that I understand my error in not asserting my right to immediately appeal the NJP and to contest my adverse separation.  I am now respectfully seeking your assistance to overturn this NJP finding and to modify my characterization of separation.

I am proud of my nearly 6 years service in the Navy.  My proud accomplishments while in the Navy are; Battle “E” Ribbon (2); Meritorious Unit Commendation; National Defense Service Medal; Sea Service Deployment Ribbon; and Navy and Marine Corps Overseas Service Ribbon, Accomadation (Flag) Letter from The Commander, Naval Medical Center Portsmouth, Virginia for superior performance in oral surgery as Chair side Assistant; Decommissioning Crew of The USS Platte, last but not least, serving my country in during Operation Iraqi Freedom.

Thank you in advance for your assistance.

Sincerely,

E_ S_ Jr. (Applicant)”

Documentation

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

2 Copies of Applicant’s DD Form 214 (2 pages Member –4 and Member –1)
Urinalysis data, dated 29 Sep 2003
Copy of 1 page from the Applicant’s Separation Physical 
Applicant’s sworn statement to NCIS dated 28 May 2003 (3 copies)
2 Copies of Navy newsstand article (2 pages), dated 21 May 2003
Copy of Evaluation Report/Counseling Record, dated 15 July 2002
Copy of Letter of Commendation from CO, USS PLATTE, not dated
Copy of Letter of Commendation from Commander, Naval Medical Center, Portsmouth, Virginia, dated 30 Oct 2001 
Letter from Applicant, dated 01 Jun 2004
Copy of Test Scores Report from Louisiana Technical College, dated 21 July 2003
2 Copies of Grades from Louisiana Technical College, dated 08 Jan 2004
Letter from Applicant (2 pages), dated 26 Nov 2004
Applicant’s travel orders (2 pages)
Negative Urinalysis Results, Naval Drug Lab Jacksonville, FL, dated 10 Jun 2003
Dental Examination Results, dated 20 Jun 2003
Applicant’s Leave and Earnings Statement
Holiday Inn Receipt, dated 30 Jun 2003
Applicant’s Separation Orders
Household Goods Shipment Form, dated 15 Jul 2003
Character Reference Letter from Master E_ S_, Sr., dated 26 Nov 2004
Copy of Applicant’s Taw Kwon Do Black Belt Certification

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	970716 - 970828	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  970829		Date of Discharge:  030630

Length of Service (years, months, days):

	Active:    05 10  01
	Inactive:  None

Age at Entry:  18			Years Contracted:  4 (23 month extension)

Education Level:  12			AFQT:  59

Highest Rate:  DN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (1)	Behavior:  3.00 (1)		OTA:  3.67

Military Decorations:  None

Unit/Campaign/Service Awards:  Flag Letter of Commendation, GCM, NER (2), NDSM, SSDR, NMCOSR, MUC

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:

970830:	Administrative Remarks.  Applicant counseled that he is being retained in the Naval Service, despite fraudulent induction as evidenced by failure to disclose required basic enlistment eligibility information (Speeding 5/96, Slidell, LA, paid $136). Applicant advised that further deficiencies in performance or conduct may result in processing for administrative separation.  

021109:	Competence for Duty Examination:  Reason for referral – alcohol related incident within 8 hours of duty.  24 year old male who consumed five drinks of alcohol, beginning at 1930 hrs and early as 2330 hrs (per his report) on 8 Nov 02.  Pt was walking toward water [sic] when he was punched by EMFN F_; and was taken to Branch Medical Clinic for suturing of his laceration.  He was released from BMC at approximately 0320 on 09Nov92.  Member found competent for full duty.

030528:	Applicant’s sworn statement to Ship’s Security (verbatim):  “I just met D_ about 1 ½ weeks ago.  That was my first time ever meeting him.  I haven’t smoked are did any other drugs with him, neither have I seen him do any drugs.  I don’t know how my name has come up in this situation besides the fact that I know some of the other sailors involved.”

030528:	Applicant consents to provide a urine sample.

030610:	NAVDRUGLAB Jacksonville, FL, reported urine samples, received 05 Jun 03, tested negative.

030613:	Applicant’s sworn Statement to Ship’s Security (verbatim):  “On May 23, 2003, HT3 S_ arrived at my house with P.O. D_.  They asked if we wanted to smoke and we did.  We went into H_’s room (S_, D_, P_, F_, H_ and I) P.O. D_ had the hash when he arrived.”

030618:	NJP for violation of UCMJ, Article 112a:  Wrongful use of a controlled substance.
Award:  Forfeiture of $675.40 pay per month for 2 months, reduction to E-2, restriction and extra duties for 45 days.

030619:	Applicant notified of recommendation for discharge by reason of misconduct due to drug abuse.  Applicant notified that if separation is approved, the least favorable characterization of service is under other than honorable conditions.

030619:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights.

030620:	Commanding Officer, USS EMORY S. LAND (AS 39) recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

030620:	Separation Physical:  Screened for Substance Dependence, Negative finding.  Member physically qualified for separation.

030630:	DD Form 214 issued reflecting discharge on 30 June 2003 under other than honorable conditions by reason of misconduct – drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030630 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 and 2:  The Applicant contends his discharge was improper because he was not afforded appropriate due process in his nonjudicial punishment proceedings and his discharge processing.  The Applicant’s claim is without merit.  The evidence of record indicates the Navy afforded the Applicant the necessary amount of due process required of administrative separation actions.  The Applicant’s command had a preponderance of evidence to suggest the Applicant had committed misconduct due to drug abuse by virtue of his sworn statement to security and his resulting award of nonjudicial punishment.  Additionally, the Applicant signed and initialed that he was properly notified of his recommended administrative separation, waived all of his rights in regard to his discharge processing, and understood his least favorable characterization of service was under other than honorable conditions.  Nothing more is necessary to satisfy due process requirements in administrative separation actions.  Relief denied.

Issue 3:  The Applicant contends that his otherwise stellar record of service entitles him to an upgrade.  When the service of a member of the 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.  There is credible evidence in the record to suggest the Applicant wrongfully used a controlled substance based upon the Applicant’s own admission and nonjudicial punishment for a violation of the UCMJ Article 112a.  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 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.  Such conduct falls far short of that expected of a member of the U.S. military and does not meet the requirements for an upgrade of his characterization of service.  Relief is not warranted.

The following if provided for the edification of the Applicant.  The NDRB has no authority to provided additional relief in this case.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning any further review of his naval service.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 2002 until Present, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - Drug Abuse.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023