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

FOR OFFICIAL USE ONLY

ex-SN, USN
Docket No. ND06-00811

Applicant’s Request

The application for discharge review was received on 20060509.  The Applicant requests the Narrative Reason for discharge be changed to “Early Release” and Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20070315.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, impropriety in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the discharge shall change to:  HONORABLE/MISCONDUCT, authority: MILPERSMAN 3630620, Separation Code “HKK.”

PART I - ISSUES AND DOCUMENTATION

Decisional Issues

Propriety:  Factual basis for discharge did not exist.
Equity:	     Post-service accomplishments mitigate characterization of service.

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Applicant’s DD Form 214 (Service 2)

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR (DEP)	19871208 - 19880801	ELS
	Active:    None

Period of Service Under Review:

Date of Enlistment:  19940927		Date of Discharge:  19950804

Length of Service (years, months, days):

	Active:    00  10  08  (Does not exclude lost time.)
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  1 day
	Confinement:		  None

Age at Entry:  25

Years Contracted:  4

Education Level:  12				AFQT:  27/35

Highest Rate:  SN

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.6 (1)			Behavior:  3.0 (1)		OTA:  3.40

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  National Defense Service Medal

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

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

Chronological Listing of Significant Service Events: 

950321:	Informal written counseling for Applicant’s gear adrift on rack during barracks inspection (second incident).  Assigned 2 hours of extra military instruction.  

950414:	Informal written counseling for Applicant’s failure to report to PREVENT class (resulting in being dropped from class) and subsequently falsely claiming to supervisors that he had reported and had been released by class facilitator.  

950420:	Informal written counseling for Applicant’s failure to report his whereabouts to immediate supervisor after failing to report to appointed place of duty.

950530:	Informal written counseling for Applicant’s habitual failure to go to quarters at time designated.

950608:	Retention Warning:  Advised of deficiency (habitual lateness for morning Quarters and divisional evolutions).  Notified of corrective actions and assistance available, advised of consequences of further deficiencies, issued disciplinary and discharge warnings.

950617:	Informal written counseling for Applicant’s failure to prepare for Commanding Officer’s dungaree uniform inspection.

950617:	Informal written counseling for Applicant’s failure to go to quarters at time designated.  Applicant 25 minutes late.

950618:	Applicant to unauthorized absence at 0700.

950619:	Applicant from unauthorized absence at 0945 (1 day/surrendered).

950623:	NJP for violation of UCMJ, Article 86:  Unauthorized absence.
	Award:  Forfeiture of $427.20 per month for 1 month, restriction and extra duty for 30 days.  No indication of appeal in the record.

950712:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 950630, tested positive for THC.

950803:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as general (under honorable conditions) by reason of misconduct due to drug abuse as evidenced by positive results on command directed urinalysis.

950803:	Applicant advised of rights and having elected not to consult with counsel, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

950804:	Commanding Officer directed Applicant’s discharge and informed Chief of Naval Personnel of decision to discharge Applicant by reason of misconduct due to drug abuse with a characterization of service as general (under honorable conditions).

950804:	Applicant discharged.

950912:	BUPERS directed that the Applicant be discharged by reason of misconduct due to drug abuse with characterization of service based on enlisted performance evaluations.  

950919:	Command forwards Drug and Alcohol Abuse Report (DAAR):  Marijuana abuse.  Service directed urinalysis on 960619.  Commanding Officer recommended separation.  Comments:  Member was a poor performer and did not respond to counseling.  Blocks 14 – 20:  No records on file to fill in these blocks.  The reason for the late DAAR:  Previous DAPA had no record of any previous DAARs submitted.  He left the ship due to personal health problems on 950906.  All future DAARs will be submitted on time.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19950804 by reason of misconduct due to drug abuse (A and B) with a service characterization of general (under honorable conditions).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper, but the characterization of service was not proper (C).  

The Applicant requested a change to the narrative reason for his discharge, asserting his believe that he had not “failed a ureain test,” and thus implying that he had not used marijuana.  The Board found credible evidence in the record that the Applicant used illegal drugs.  The Board noted the administrative errors in the chain of custody documents accompanying the Applicant’s urine sample; however, after careful review of the unit ledger, custody document and drug laboratory report, the Board was convinced that the urine sample which tested positive for THC was in fact the Applicant’s sample.  Mandatory processing for separation is required for Sailors who abuse illegal drugs and the Applicant was discharged for this reason.  Therefore, the Board determined that the Narrative Reason for discharge was accurate and should not change.

Regarding characterization of service, the Board noted that Applicant’s urine sample was “command directed,” as evidenced by the codes indicated in the custody documents and the notification of administrative separation.  By regulation at the time, the results of command directed urinalysis could not be used in characterizing service, and BUPERS directed that characterization be assigned based on the Applicant’s enlisted performance evaluation marks.  A review of Applicant’s records indicated a general (under honorable conditions) characterization was not warranted.  The Applicant’s performance evaluation marks, which covered the period in which the Applicant received nonjudicial punishment, did not fall below the threshold of marks required for a making a service member eligible for a characterization of service as general (under honorable conditions).  Therefore, the Board found the characterization of service assigned to be improper.

The Board noted that the Applicant provided his urine sample upon return from a period of unauthorized absence, and, therefore, his urine sample might have been collected as part of a sub-unit sweep, the results of which could have been used in characterizing the Applicant’s service.  Had that been the case, or had the Applicant been assigned performance evaluation marks consistent with eligibility for a characterization of service as general, the Board would have found no impropriety or inequity (D) in the Applicant’s characterization of service as general (under honorable conditions).  

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.  OPNAV Instruction 5350.4B, Alcohol and Drug Abuse Prevention and Control of 13 September 1990, Enclosure 4, Para 5, Types of Tests and Authority to Conduct, and Appendix A to Enclosure 4, Use of Drug Urinalysis Results.

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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction.  You should read Enclosure (5) of the Instruction 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 Instruction 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