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

 
ex-SA, USNR
Docket No. ND04-01117

Applicant’s Request

The application for discharge review was received on 20040629.  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 20041122.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, an inequity in the Applicant’s Narrative Reason for Separation was discovered by the NDRB.  The Board’s vote was 4 to 1 that the Narrative Reason for Separation shall change.  The discharge shall change to: GENERAL (UNDER HONORABLE CONDITIONS)/SECRETARIAL AUTHORITY, authority: NAVMILPERSMAN, Article 3630900, separation code, JFF.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1.  “I have understood now, accepting responsibility and the consequences due me resulting from my misconduct due to drug abuse.  It is my hope the board can agree with me in saying that it was not worth it.  If nothing else changes, or if nothing else comes of this request, please note the charge II is most important to me, as accepting them all, and I would like to extend my apology to the United States Navy as well as Lieutenant Commander B_.  The punishment I accepted but worst of all, I have robbed myself.  The few lessons I did learn while associated with the USN I excel with, and feel I cut my self short.  Thank you for your consideration in this matter.”

Documentation

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

Copy of DD Form 214
Service Record Documents (4 pages)
Letter from Applicant dated August 29, 2004

PART II - SUMMARY OF SERVICE

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

	Inactive: None
	Active:   None			

Period of Service Under Review:

Date of Enlistment:  950428		Date of Discharge:  960809

Length of Service (years, months, days):

	Active:    00  10  26
	Inactive:  00  04  16

Age at Entry:  18			Years Contracted:  8

Education Level:  12			AFQT: 44

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.00 (1)	Behavior:  2.00 (1)		OTA:  2.00

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events:

950914:	Applicant ordered to active duty for 36 months under the Seaman Apprenticeship Training Program

960408:	Keesler Air Force Base, MS, reported Applicant’s urine sample, received 960301, not collected under chain of custody and for medical use only, negative for drugs (sample does not appear to have been tested for cannabinoids).

960408:	Keesler Air Force Base, MS, reported Applicant’s urine sample, received on 960304, positive for cannabinoids, confirmed by thin-layer chromatography at Brooks Air Force Base, TX.

860422:	NJP for violation of UCMJ, Article 86:  Failure to go to appointed place of duty, violation of UCMJ, Article 89:  Disrespect toward a superior commissioned officer, violation of UCMJ, Article 92 (2 specs):  Failure to obey orders or regulations.
	Award:  Restriction and extra duty for 30 days, Administrative separation ordered as soon as possible.  No indication of appeal in the record.

960426:	Applicant notified of intended recommendation for discharge with a least favorable characterization of service of general (under honorable conditions) by reason of misconduct due to drug abuse.

960429:	Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

960430:	Commanding Officer recommended discharge with general (under honorable conditions) by reason of misconduct due to drug abuse.

960515:	BUPERS holds Applicant’s separation in abeyance because notification procedures were used to process Applicant vice administrative board procedures.

960522:	Commanding Officer informs BUPERS that Applicant processed for separation through notification procedures vice administrative board procedures due to processing being based solely on command directed fitness for duty urinalysis test results.

960604:	BUPERS holds Applicant’s separation in abeyance.

960722:	BUPERS directs Command to reprocess Applicant in accordance with administrative board procedures with a least favorable characterization of under than honorable conditions.

960730:	BUPERS directed the Applicant's discharge and characterization based on enlisted performance evaluations by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19960809 with a general under honorable conditions for misconduct due to drug abuse (A).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge characterization to be proper, however, the Narrative Reason for Separation was not equitable (B and C).

Although the Applicant did not raise the issue, the NDRB, under its responsibility to examine the propriety and equity of an Applicant's discharge, will change the Narrative Reason for Separation if such a change is warranted.  The Applicant was discharged by reason of misconduct due to drug abuse as evidenced solely by a command directed fitness for duty urinalysis test results.  The evidence of record indicates problems surrounding the urinalysis in question.  Specifically, the positive sample appears to have been collected at the Keesler Air Force Base Hospital emergency room and sent to Brooks Air Force Base for analysis.  The lab report indicates that the collection at Keesler may not have followed proper chain of custody procedures and indicated the testing may have been for medical use only.  Furthermore, the record contains only a positive result as evidenced by the Keesler patient records and does not contain any actual documentation from the Brooks Air Force Base confirming the positive urine sample.  The urinalysis results that do appear in the record do not indicate that the test was confirmed positive by gas chromatograph mass spectrometry analysis and the record contains no evidence to suggest an appropriate basis for the command directed, fitness for duty testing that resulted in the Applicant’s positive urinalysis.  Based upon this evidence, the Board found that processing the Applicant for misconduct due to drug abuse was inappropriate.  As such, by a vote of 4 to 1, the Board found that the Narrative Reason for Separation shall change to Secretarial Authority.

Issue 1:  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.  A general (under 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 was marred by nonjudicial punishment proceedings for violations of Articles 86, 89, and 92 of the UCMJ.  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 remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560C), Change 9/94, effective 
22 Jul 94 until 02 Oct 96, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO DRUG ABUSE.

B.  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.

C.  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