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Docket No. ND00-00716

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

ex-TMSN, USN
Docket No. ND00-00716

Applicant’s Request

The application for discharge review, received 000510, requested that the characterization of service on the discharge be changed to honorable.  The applicant requested a personal appearance hearing discharge review before the board in the Washington National Capital Region.  The applicant did not list any representative on the DD Form 293.  In the acknowledgement letter to the applicant, 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 001206.  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: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  Sirs:

I am requesting a discharge review board, based on the wrongful and untimely death of a promising military career.  Had I been given adequate council and disclosure of the options available to me, I feel the decisions made under duress, would have been quite different. I had submitted to a urinalyses on 26 May 1999, knowing that nothing would show up.  And, having never knowingly used a controlled substance prior, I was taken completely by surprise when traces of cocaine were detected in my urine.  I was literally in shock when the reaction presented by the Chief Legal Officer was, "give up, there's nothing you can do about it.  Admit to it."  While in this distraught psychological condition I found myself late for Muster, which enraged my superiors.  The immediate options presented were to either submit to a "Captains Mast" or sign the Discharge papers, and following the instructions of my superiors I found myself signing the discharge papers, not realizing that this action was destroying my life long dream.
Please review my service record, awards, letters of appreciation, and achievements; including the direction of my Boot Camp Choir, directing the Simon Lakes Gospel Choir, direction of the N. S.A. LaMadalana Italy Chapel Choir and vocal solo performances at numerous change of commands, reenlistments, retirements, honor ceremonies, and C.O. request performances.  They are a testimony of my love and honor to the U. S. Navy and my desire to return to active duty and be the best sailor I can possibly be.

Respectfully,

Documentation

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

Copy of DD Form 214
Letter from Director, Sixth Fleet Band dated December 4, 1998
Letter from a LCdr dated January 21, 1997
Letter from Commander dated February 8, 1999
Copy of certificate dated October 23, 1998
Copy of Report and Disposition of Offense(s) dated June 18, 1999
Copy of MILPERSMAN 1000-160

PART II - SUMMARY OF SERVICE

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

	Active:   None
	Inactive: USNR (DEP)	960911 - 961015	COG

Period of Service Under Review:

Date of Enlistment:  961016		Date of Discharge:  990712

Length of Service (years, months, days):

	Active:    02  08  27
	Inactive:  None

Age at Entry:  28			Years Contracted:  4

Education Level:  11			AFQT:  35

Highest Rate: E3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.00 (2)	Behavior:  2.50 (2)		OTA:  2.40

Military Decorations:  None

Unit/Campaign/Service Awards:  AFSM, NER, NUC, AFEM, SSDR

Days of Unauthorized Absence:  7 

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events:

990607:	NAVDRUGLAB, Great Lakes, IL msg 071445Z Jun 99.  No further information found in service record.  Extracted from administrative separation processing notice - notification procedure.

990618:	NJP for violation of UCMJ, Article 86: Unauthorized absence 1200, 10Jun99 to 0930, 18Jun99 (7 days/surrendered), violation of UCMJ Article 112A: Wrongful use of a controlled substance on 26May99.

990621:	Applicant notified of intended recommendation for discharge general (under honorable conditions) by reason of misconduct due to drug abuse as evidenced by NAVDRUGLAB Great Lakes IL msg 071445Z Jun 99 (Positive Urinalysis report for Cocaine use).

990621:  	Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

990625:	Commanding Officer directed the applicant's discharge general (under honorable conditions) by reason of misconduct due to drug abuse (use).

990706:	Psychiatric evaluation: A/P: Adjustment disorder.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 990712 general (under 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).

The NDRB found no impropriety or inequity in the discharge and that the applicant was afforded his rights according to regulations.  Furthermore, NDRB found the applicant’s issue that he was “late for muster” was in fact an unauthorized absence of seven days.  Relief is denied.

The Board found the applicant’s otherwise creditable service was marred by his misconduct (drug use) and unauthorized absence.  The applicant’s discharge of General Under Honorable Conditions is appropriate.  Relief is denied.

The NDRB is authorized to consider post-service factors in the re characterization of a discharge.  The applicant must be aware that 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 the civilian life subsequent to leaving the service.  Normally, to permit relief, an error or injustice must have been found to have existed during the period of enlistment in question.  Outstanding post-service conduct, to the extent that such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review, may be considered by the NDRB.  

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.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 18, effective 12 Dec 97 to 19 May 99, 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

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/A019/A0157/A9203