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

 ex-FA, USN
Docket No. ND04-01133

Applicant’s Request

The application for discharge review was received on 20040708.  The Applicant requests the characterization of service received at the time of discharge be changed to general/under honorable conditions.  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, 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 of the 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

Applicant’s issues, as stated on the application:

1.  “Please feel free to contact me personally I will take lie detector tests anything to prove my innocence.  (phone numbers omitted).  I look forward to a fair and just review of the occurance.

I B_ A_ E_ (Applicant) am requesting that my discharge be changed.  For the following reasons

1.  I did not take any illegal drugs knowingly
2.  I tried to appeal my discharge and was refused
3.  I was told if I proceeded with the appeal that further charges could be brought against me.
4.  I have passed every drug test given to me but the one in question.  (prior and past tests).
5.  My privacy act of 1974 was violated.  The whole ship and personnel on board knew of the incident prior to me being questioned to even defend myself.
6.  I have witnesses to my behavior that night in question.  I have a witness to her confession of what she did S_ A_ (USS Defender Navy personel).
7.  I have her confession by a letter to my parents that I have also showed to a jag lawyer and to Ship commanding officers.

You will find copies of letters and the correspondance that I have filed trying to clear my name.  I can not accept my discharge because of what some girl did to me one night that I had no idea what was happening.  I valued my job and was proud to serve my country.  I will never be able to accept this judgement it is not fair and I tried with no avail to pursue this while still enlisted but no one would help me, I was accused of changing my story and all kinds of weird things that never occurred.  The only thing I did was try and retrace my events of the evening and try and figure out how this could have possibly happened to me.  The amount of drug that showed up on my test was so little it could not have been inhaled (according to lab reports) It had to have been ingested by a drink or with food.  And that is exactly what occurred this girl put some in my soda.  Since this happened This girl J_ H_ has been scared off afraid that she will be charged by the DOD for her actions she will not return my calls or emails she is scared.  I am asking you to please review these allegations against me and reverse them.  Please contact my ship personnel A_ D_ A_ USS Defender and Chief R_ M_ USS Defender they will account for my ethics and give me a personal reference.

I loved the Navy and still wish that I could serve my Country I would appreciate the chance to do so again.

I am resubmitting my request for Discharge or Dismissal form OMB 0704-0004.

I feel that I wrongly received a Other than Honorable Discharge from the Navy and I sent my forms in last October and It was sent back to me because you didn’t have the appropriate paperwork to review my case I was told to resubmit it in six months, that is what I am doing.

I wanted to update my status for you in my life and tell you what I am doing now.  I currently work for Valley Air Conditioning, I love my job and have received 3 pay increases since I started in January, I have taken several drug tests since my discharge and have never failed one as a matter of fact the Only one I ever failed was the one in question.  I have done well for myself except for this discharge hanging over my head.  I served my country and was prepared to protect it at the ultimate cost for my safety.  I am proud to be an American and to have served in the Navy, I invite you to ask just about anyone that I worked with on my ship (except) the captian I feel he was bias and was trying to make an example of me without factual information about the situation, basically he didn’t care.  Failing a drug test was black and white you fail and your gone no exceptions.  I disagree there are exceptions and I was set up, I have never taken drugs and certainly not while in the Navy.  I want my discharge changed for my sake and my future, My time in the Navy and the service that I did for my Country should be something I should be proud of for the rest of my life, I didn’t deserve to be treated the way I was.  (like trash).

Please review my case so I can rest this part of my life and carry on.”

Documentation

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

Appeal of Nonjudicial Punishment, dated 23 Apr 03

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	011130 - 020108	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  020109		Date of Discharge:  030613

Length of Service (years, months, days):

	Active:    01  05  05
	Inactive:  None

Age at Entry:  19			Years Contracted:  4

Education Level:  12			AFQT:  31

Highest Rate:  FN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  NMF*			Behavior: NMF		OTA:  NMF

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

Days of Unauthorized Absence:  None

*No marks found in record

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:

020730:	NJP for violation of UCMJ, Article 92:  Failure to obey order or regulation.
Award:  Forfeiture of ½ month’s pay per month for 2 months (suspended for 2 months), restriction and extra duty for 30 days.  No indication of appeal in the record.

030403:	NAVDRUGLAB, Jacksonville, FL reported Applicant’s urine sample, received 030401, tested positive for cocaine.

030418:	NJP for violation of UCMJ, Article 112a:  Wrongful use, possession, etc., of a controlled substance.
Award:  Forfeiture of $670.00 pay per month for 2 months, restriction for 60 days, reduction to E-2.  Applicant appeal of NJP dated 030423 denied on 030513.

030515:	Applicant notified of intended recommendation for discharge with a least favorable characterization of under other than honorable conditions by reason of misconduct due to drug abuse.

030515:	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.

030515:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

030611:	Commander, Mine Warfare Command, directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030613 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).

Issue 1:  Normally, to permit relief, an impropriety or inequity must have existed during the period of enlistment in question.  No such impropriety or inequity is evident during the Applicant’s enlistment.  There is credible evidence in the record that the Applicant used illegal drugs.  Although the Applicant denies knowing use of illegal drugs, current case law and regulation allow for the presumption of knowing and wrongful use of illegal drugs on the basis of a positive urinalysis alone.  As such, there was nothing improper or inequitable about the Commanding Officer relying on the positive urinalysis as evidence of knowing illegal drug use in the processing of the Applicant’s separation.  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 Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

Issue 2:  The record contains evidence that the Applicant appealed his NJP.  The record also contains evidence that the Applicant’s NJP was properly reviewed, accorded its due weight under fact and law, and ultimately denied.  The mere fact that the Applicant’s NJP was denied does not afford him relief.  The record contains no evidence that the NJP appeal authority acted in anyway improperly or inequitably in the review of the Applicant’s NJP appeal.  As such, relief denied.

Issue 3, 4, 6 and 7:  The Applicant contends that he was threatened with further charges if he proceeded with his appeal.  He further contends that he has passed every other drug test he has been given, that he has a witness to corroborate his claim of innocent ingestion and a written confession of the alleged perpetrator.  There is no evidence in the record, nor has the Applicant provided any evidence, to support these contentions.  The burden of proof rests with the Applicant on the presentation of substantial and credible evidence.  In the absence of such evidence, the NDRB must rely upon the presumption of regularity.  As noted above, the Applicant submitted no evidence in support of his contentions.  As such, relief denied.

Issue 5:  The Applicant alleges that his rights under the Privacy Act of 1974 were violated by his command in the processing of his case.  The NDRB is limited to a review of the propriety and equity of an Applicant’s discharge.  This is not an issue on which the Board can grant relief.  

The following is provided for the edification of the Applicant.  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, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any documentation for the Board to consider.  Relief denied.

Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, NDRB is not authorized to change a reenlistment code.  An unfavorable “RE” code is, in itself, not a bar to reenlistment.  A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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 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), 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 5420.174C 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