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

FOR OFFICIAL USE ONLY

 ex-OS2, USN
Docket No. ND05-00205

Applicant’s Request

The application for discharge review was received on 20041103.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing discharge review before the Board in the Washington, D.C. Metropolitan area.  The Applicant listed a Private Representative 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 discharge review was conducted in Washington, D.C. on 20050819.  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 subscribed and sworn on the 22nd day of October 2004:

“In October of 2002, I was arrested and charged with several charges that I was not involved with.  This is an explanation of those series of events.

I was stationed in NSA Bahrain, Security Department starting February of 2001,  I was a motivated and dedicated sailor.  I was transferred to the Harbor Protection Unit were I quickly became watch section leader, senior field training officer, PRT coordinator and the only E-5 to be named watch officer.  At one time I held every extra duty at the Harbor Protection Unit. I assisted in rewriting the training curriculum and chaired all boards for certification. I also wrote the SOP’s for the HPU in Jebel Ali, received a 4.71 on my last evaluation and was on my way to make E-6 in less than 4 years.  I was selected to go to Jebel Ali and set up the HPU in September of 2002.  I returned to Bahrain in October to help YN2 T___ with paperwork. I awoke the morning of the 4TH to NCIS agents running through my flat.

Before I left for Jebel Ali, a friend of mine, BM2 C___ A___ had been involved with dealing and using ecstasy, which I had no knowledge of.  BM2 A___ was slated to leave Bahrain and the Navy in October of 2002.  I asked him to watch my flat while I was Jebel Ali until he left Bahrain.  BM2 A____ and another friend of mine, V___ B___, an English nurse working in Bahrain Petroleum who was also leaving Bahrain, were having a going away dinner at Jim’s Restaurant on October 3rd.  I had dinner with them and several other people.  One of those people was BM2 A___’s girlfriend, N___ S___.  Without my knowledge, C____ made a phone call and ordered some ecstasy pills for him and several others.  I was never asked and had no knowledge of any of this.  The group moved to a nightclub called Likwid.  I left before that to meet a friend and met BM2 A___ and the others sometime later.  In the meantime, they had obtained the pills and taken them, which turned out to be just ephedrine.  I had taken this before when I was tired or my sinuses was clogged.  This is not an illegal substance or I would have never taken it.

Upon my arrival at Likwid, I met up with BM2 A___, V___ B___, N___ S___ and others.  I had been suffering from a headache for several weeks prior to this event.  I was also tired from working long hours and traveling.  I had also been drinking that night, because I had not been out due to my work schedule. I asked V___ if she had any aspirin.  She gave me the pills that hey had purchased, thinking they were just ephedrine.  I took with absolutely no knowledge of what they had been purchased as.  V___ gave them to me knowing it was not ecstasy.  That  night I went to my flat with V___, BM2 A___ and his girlfriend N___ S___.

The next morning, I had NCIS agents in my flat who were not even looking for me and had no idea whose flat it was.  They were looking for BM2 A___ and some other sailor.  V___ tells me at this time, what the pills had been bought as. I panicked. There were 2 more pills in my pocket.  I had never been involved with drugs before.  I took the pills from my jeans pocket and went into the bathroom to flush them.  One of the agents took them from me. I was apprehended on the spot.  An agent took V___’s phone number, along with N___’s.  We were taken to base and later charged with use possession and distribution of ecstasy, while the two girls were brought to base and questioned.  One agent told V__ and N___ that if they did not tell them that I was dealing drugs, that they have their passports taken and they would be turned over to Bahrain Public Security for prosecution.  V___ was also told that they would bring her boyfriend, now husband, STG3 M____, who had just transferred to San Diego, up on charges as well.  She told them what they wanted, as did N___ S___, because they were scared.  And I do not blame them because they were females in a 3RD world, Muslim country with a drug charge, an extremely frightening situation.

As soon as both girls made the statements, they both left the island with days and in V___’s case, hours.  In the meantime, BM2 A__, feeling guilty about my involvement told the command I was suicidal. He thought it would get me out of the problem.  I have been suffering from depression for as long as I can remember.  Sometimes it would manifest itself it what is termed “delicate self cutting”, my way of dealing with the problem.  I was taken by the medical department to the hospital and put on heavy medication.  Under this medication, the doctor, CMDR H___ asked me what I would like to do. I made a joke about selling surfboards in Thailand. This was taken as an attempt to flee jurisdiction and I was sent to the confinement facility in Mannheim, Germany as a detainee. I spent over 4 months there as the investigation proceeded.  During the investigation BM2 A___ made a misstatement about giving pills to everyone at the going away dinner.  They would not let him change his statement and told it would jeopardize his deal with the prosecution.  My urinalysis came back clean and the lab report on the pills said it was ephedrine, not ecstasy.  The only evidence  they agents had was the two statements from N___ S___ and V___ B___ and BM2 A___’s statement about the dinner party.  The prosecution offered me a deal to drop the distribution and use charge if I admitted to the possession charge.  My lawyer told me that we could not beat the possession charge.  I took the deal because I felt that I had no other choice.  I was discharged under Other Than Honorable conditions.  BM2 A___ received the same deal I did, except he did no jail time.

I have since been in contact with C___ A__ and V___ B___, now M____.  They both have expressed their regrets in getting me involved in this situation and have agreed to give affidavits expressing my innocence.

I was ignorant of their drug use.  Because of this, my naval career is destroyed.  I loved serving my country and being in the military.  Before I joined the Navy, I had a distinguished 6 years in the U.S. Marine Corps Reserve.  Since my discharge, I have been turned down from two high paying jobs in the civilian sector and prevent from many others.  It has also jeopardized my chance law school and nursing school.  I am being repeatedly punished for something that I did not do.  I am asking you for your help in changing my discharge and my life.

In addition, all of my personal belonging are still in Bahrain, sitting since October 4th, 2002 with no air conditioning.  I was allowed to take nothing from my flat, including all my personal papers.  My truck had been sitting in the desert since October 4th, 2002 and will not start now.  I have to take a loan out for $3000.00 to fix enough to ship to the states.  I am frustrated, very frustrated.  In addition to receiving an Other Than Honorable Discharge, everything I own is sitting in a flat, with no air conditioning, covered the fine sand dust that permeates everything in Bahrain. I need you help to get my life back.

I thank you for you time and your consideration,

			   LP D___ Y___, IV”

Documentation

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

Affidavit from Applicant dtd October 22, 2004 as listed above (4 pgs)
Affidavit from Applicant, also signed by C___ J. A___ dtd August 30, 2004 (4 pgs)
Affidavit from V___ M___ dtd September 17, 2004 (2 pgs)
Applicant’s DD Form 214

PART II - SUMMARY OF SERVICE

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

	Inactive: USMCR 		900403 - 981014	HON/EOS
Inactive: USNR (DEP)	991022 - 991102	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  991103		Date of Discharge:  030319

Length of Service (years, months, days):

	Active:    03  04  17
	Inactive:  None

Age at Entry:  29			Years Contracted:  4 

Education Level:  16			AFQT:  77

Highest Rate:  OS2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.25 (4)		Behavior:  2.5 (4)		OTA:  3.04

Military Decorations:  None

Unit/Campaign/Service Awards:  Good Conduct Medal, National Defense Service Medal, Armed Forces Expeditionary Medal, Expert Rifleman Medal, Expert Pistol Shot Medal

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:

991103:	Enlisted USN for 4 years.

030319:	Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use), authority, MPM 1910-146, per DD Form 214.

Service Record did not contain the Administrative Discharge package.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030319 under other than honorable conditions for misconduct due to drug abuse (A).  After a thorough review of the available records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (B and C).  The presumption of regularity of governmental affairs was applied by the Board in this case in the absence of a complete discharge package (D).    

The Applicant’s DD 214 serves as credible evidence 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 Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.

The Applicant contends that he did not use illegal drugs and “took the possession charge” at the advice of counsel.  The government enjoys a presumption of regularity in the conduct of its affairs.  The Applicant bears the burden of overcoming this presumption through the presentation of substantial and credible evidence to support his issue.  There is no evidence in the record, nor has the Applicant produced sufficient evidence aside from sworn statements, to support the contention that he was not guilty of violating Article 112a of the UCMJ.  The Board found the submitted affidavits alone did not overcome the government’s presumption of regularity in this case.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities.  Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.  Relief denied.  

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.  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 V, Para 502, Propriety.

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

D.  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.
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