Author: CAP
Last saved by: Margaret L. Ryan
Company: NCPB

Docket No. ND99-00170

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

ex-GSM3, USN
Docket No. ND99-00170

Applicant’s Request

The application for discharge review, received 981113, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing discharge review.  The applicant did not list any representative on the DD Form 293.  In the acknowledgement letter to the applicant, he 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 991004.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service.  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 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  THEIR WAS A RUSH TO JUDGMENT IN MY CASE ALLEGING USE OF MARIJUANA.  MY COMMANDING OFFICER REFUSED TO MITIGATE OR LISTEN TO CIRCUMSTANCES.  NO TRACE OF THIS DRUG WAS EVER FOUND IN RANDOM URINALYSIS.  I WAS ACCUSED SIMPLY BY ASSOCIATION.  I WAS SWEPT INTO A DRAGNET.  MY COMMANDING OFFICER WAS PREOCCUPIED IN PROFILING YOUNG SAILORS FOR DRUGS, WEAPONS OR ALOCHOL.  THE EVDENCE AGAINST ME WAS WEAK AND CIRCUMSTANTIAL.  I NEVER SMOKED MARIJUANA.

Documentation

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

Copy of U.S. Navy commendation
Copy of U.S. Navy citation
Copy of personal award recommendation
Copy of letter of appreciation
Copy of performance evaluation report
Copy of dissolution of marriage signed March 26, 1997

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)		910723 - 920705	COG

Period of Service Under Review:

Date of Enlistment:  920706		Date of Discharge:  971016

Length of Service (years, months, days):

	Active:    05  03  11
	Inactive:  None

Age at Entry:  19			Years Contracted:  4 (24 months extension)

Education Level:  12			AFQT:  59

Highest Rate:  GSM23

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.80 (2)	Behavior:  3.80 (2)		OTA:  3.80	4.0 evals
Performance:  4.25 (4)	Behavior:  3.25 (4)		OTA:  3.57	5.0 evals

Military Decorations:  None

Unit/Campaign/Service Awards:  AFSM, NATO, GCM, BER, MUC, NAM, NDSM

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 3630620.

Chronological Listing of Significant Service Events:

970923:	Applicant's voluntary sworn statement to NCIS Special Agent J. C. Z_:  " For the purpose of identification, I am a white male, 69 tall, weighing approximately 185 pounds.  I have brown hair and brown eyes.  My social security number is (deleted) and I was born on 08FEB73 in NEW YORK, NY.

	I HAVE NEVER SOLD OR DEALT DRUGS WHILE IN THE NAVY OR PRIOR TO JOINING THE NAVY.  THE DRUGS THAT I HAVE USED WHILE ASSIGNED TO THE USS PHILIPINE SEA IS MARIJUANA.  AFTER COMING BACK FROM A MED CRUISE IN 20DEC96, A  FORMER SHIPMATE OF MINE NAMED S_ H_ CAME TO ME AND ASKED IF I WANTED TO BUY SOME MARIJUANA AND I TOLD HIM "NO" AND HE THEN HANDED ME A BAG OF MARIJUANA AND TOLD ME TO KEEP IT.  HE GAVE ME THE STUFF WHILE WE WERE IN OUR RESPECTIVE CARS IN THE PARKING LOT LOCATED OUTSIDE OF 1ST COAST TATTOO'S.  I HAVE USED MARIJUANA ON TWO OCCASIONS, THE FIRST TIME WAS WHILE MY GIRLFRIEND WAS VISITING ME IN FEBRUARY OF 1997.  WE STAYED AT THE NAVY LODGE AND IT WAS MY BIRTHDAY AND AT THE PARTY I SMOKED SOME MARIJUANA WITH L_ AND MY GIRLFRIEND.  WE WERE THE ONLY THREE AT MY PARTY.  THE SECOND TIME I SMOKED MARIJUANA WAS WITH MY ROOM MATE NAMED DC2 M_ B_.  WE SHARED AN APARTMENT AT RIVERBEND APARTMENTS.  IT WAS EITHER THE END OF JULY OR THE BEGINNING OF AUGUST OF 1997 AND WE WERE WATCHING A BASEBALL GAME OR A MOVIE AND WE SMOKED SOME MARIJUANA.  THE MARIJUANA THAT WE SMOKED WAS THE MARIJUANA THAT H_ HAD GIVEN ME IN JANUARY.  I KEPT THE MARIJUANA AND THE PIPE IN MY BEDROOM CLOSET ON THE TOP SHELF.  B_ ALSO USED THE MARIJUANA THAT I HAD IN THE CLOSET BY HIMSELF BECAUSE HE TOLD ME HE HAD USED SOME OF THE STUFF THAT I HAD STORED IN MY CLOSET.  B_ AND B_ BOTH TOLD ME THAT THEY USED  MARIJUANA AT B_'S HOUSE DURING THE MIDDLE OF AUGUST OF 1997 WHILE WATCHING A PRESEASON FOOTBALL GAME.  I ONLY HAD A SMALL AMOUNT OF MARIJUANA.  I DO NOT HAVE ANYMORE MARIJUANA BECAUSE M_ B_ SMOKED THE REST IT.  I  STILL HAVE THE PIPE IN A CUP OF MY REFRIGERATOR.  THE ONLY OTHER PERSON WHO I HAVE HEARD TALK ABOUT USING DRUGS WAS O_.  WHILE ON DUTY ONE NIGHT, B_ TOLD ME THAT HE HAD HEARD FROM O_ON HOW TO BEAT THE URINALYSIS SYSTEM BY USING VINEGAR.  I LATER TALKED WITH O_ AND HE SAID HE OBTAINED THE INFORMATION OFF OF THE INTERNET.  O_ALSO SAID HE USED ONCE BUT HE DID NOT SAY WITH WHO OR WHEN.  I FEEL I LET SOME PEOPLE DOWN BECAUSE I WAS PUT UP FOR LPO AND I THINK I LET SOME PEOPLE'S TRUST DOWN."

971003:	NJP for violation of UCMJ, Article 112A.
	Award:  Forfeiture of $834.85 per month for 2 months, restriction and extra duty for 45 days, reduction to GSM3.  No indication of appeal in the record.

971014:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by all punishments under the UCMJ in your current enlistment.

971014:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights.

971015:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).  Commanding officer’s comments (verbatim):  On 10 September 1997 GSM3 (applicant), USN, (SSN deleted) submitted a voluntary statement to NCIS as to his use of marijuana on two occasions.  GSM3 (applicant) had been implicated in a statement submitted to NCIS by a former PHILIPPINE SEA crewmember, FN R_ L_ (enclosure 5).  On 3 October 1997 GSM3 (applicant) was found guilty for a violation of Article 112(a), Uniform Code of Military Justice and awarded 45 days restriction, 45 days extra duty, forfeiture of 1/2 PPM x 2 mos.  I am requesting that he be separated from the naval service with an Other than Honorable characterization.  He is not recommended for reenlistment.

971016:	COMCRUDESGRU TWELVE directed the applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 971016 under other than honorable conditions for misconduct due to drug abuse (use) (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).

In the applicant’s issue he avers there was a “rush to judgement” in his case.  The Board found Navy policy was correctly followed when applicant’s command discharged him after he signed a written statement to NCIS agents admitting his use of marijuana while assigned to the USS PHILIPPINE SEA.  The Board also found the characterization of service best describes the reason for the applicant’s discharge.  Although he had an enviable record of performance with numerous laudatory accolades, he nevertheless admitted using drugs during this enlistment.  Accordingly, relief is not warranted or granted in this case.  

The applicant is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge.  Representation at personal appearance hearing is highly recommended.

Pertinent Regulation/Law (at time of discharge)

A.  Navy Military Personnel Manual, (NAVPERS 15560C), Change 14, effective 
03 Oct 96 until 11 Dec 97, Article 3630620  SEPARATION OF ENLISTED PERSONNEL 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 obtain a copy of DoD Directive 1332.28 by writing to:

		DA Military Review Boards Agency
		Management Information and Support Directorate
		Armed Forces Reading Room
		Washington, D.C.  20310-1809

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
		Washington Navy Yard
		720 Kennon Street SE Rm 309
		Washington, D.C.  20374-5023

The remaining portion of this document is divided into 4 Parts: Part I - Applicant’s Issues and Documentation, Part II - Summary of Service, Part III – Rationale for Decision and Pertinent Regulation/Law, Part IV - Information for the Applicant.
INDEX: A6600/A9317/A0157/A9439/A9217/A0145