Author: CAP
Last saved by: Department of the Navy
Company: NCPB

Docket No. ND00-00875

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

 ex-GMMSA, USN
Docket No. ND00-00875

Applicant’s Request

The application for discharge review, received 000706, requested that the characterization of service on the discharge be changed to general/under honorable conditions.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010125.  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 – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1.  I feel my discharge should be upgraded to general because it was based on one incidence of positive urinalysis which occurred during a process in which the chain of command was broken.  During the urinalysis the duty master at arms (who had been previously tested positive for cocaine use) left the test area to go to the quarter deck to call more names for testing.  At this time he left another sailor watch the sample.  The sailor that was left in charge was a qualified "duty master of arms, however he should not have been left in charge of the samples because he had just given a sample himself.  Thank you for your consideration.

Documentation

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

None

PART II - SUMMARY OF SERVICE

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

	Active:   USN			None
	Inactive: USNR (DEP)	831230 - 840220	COG

Period of Service Under Review:

Date of Enlistment:  840221		Date of Discharge:  870429

Length of Service (years, months, days):

	Active:    03  02  09
	Inactive:  None

Age at Entry:  23			Years Contracted:  4 

Education Level:  12			AFQT:  91

Highest Rate:  GM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.35 (4)	Behavior:  3.35 (4)		OTA:  3.45

Military Decorations:  None

Unit/Campaign/Service Awards:  None 

Days of Unauthorized Absence:  3 

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Drug abuse (Use), authority:  NAVMILPERSMAN, Article 3630620.

Chronological Listing of Significant Service Events:

850718:	NJP for violation of UCMJ, Article 86: Unauthorized absence 850607-850608 {1day/S}.
	Award:  Forfeiture of $96.00 per month for 1 month, restriction and extra duty for 4 days.  No indication of appeal in the record.

850819:	Retention Warning:  Advised of deficiency ( a) Prior to report onboard you were arrested for DWI in LA County.  Result: 1 day lost for a court appearance. B) On 850618 you were 11 hours late in reporting back to the ship. Result: 1/2 day lost. C) You were "UA" for 1/2 days. Result: Missing a "duty day" and your assigned watch for that day.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

UNDATED:	Retention Warning:  Advised of deficiency (Your repetitive abuse of alcohol has resulted in a second alcohol related civil offense, to wit, drunk in public on 851031.), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning. 

861202:	NAVDRUGLAB, SAN DIEGO, CA urinalysis report indicates applicant tested positive for THC.

861204:	NJP for violation of UCMJ, Article 86: Unauthorized absence 861124-861126 {2days/S}, violation of UCMJ Article 87: Missing movement, violation of UCMJ Article 112a: Wrongful use of controlled substance (marijuana).
	Award:  Forfeiture of $392.00 per month for 2 months (1 month suspended for 2 months), restriction for 45 days, reduction to E-3, oral reprimand.  No indication of appeal in the record.

861223:	Medical Officer indicates he has no evidence to believe patient is dependent on drugs.

861224:	Applicant notified of intended recommendation for discharge general under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by positive urinalysis for THC.

861224:  	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.

861224:	Commanding officer recommended discharge under honorable conditions by reason of misconduct due to drug abuse (use).

870128:	CNMPC advised USS DUNCAN to reprocess applicant for misconduct due to drug abuse and misconduct due to commission of a serious offense.
   
870406:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by positive urinalysis for THC, and misconduct due to commission of a serious offense, as evidenced by missing movement of USS DUNCAN (FFG-10).

870406:  	Applicant advised of his rights and having elected 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.

870410:	NJP for violation of UCMJ, Article 86: Unauthorized absence.
Award:  Oral reprimand, reduction to E-2.  No indication of appeal in the record.

870410:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to commission of a serious.

870423:	CNMPC 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 870429 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).

The applicant’s issue states:  “I feel my discharge should be upgraded to general because it was based on one incidence of positive urinalysis which occurred during a process in which the chain of command was broken.  During the urinalysis the duty master at arms (who had been previously tested positive for cocaine use) left the test area to go to the quarter deck to call more names for testing.  At this time he left another sailor watch the sample.  The sailor that was left in charge was a qualified "duty master of arms, however he should not have been left in charge of the samples because he had just given a sample himself.  Thank you for your consideration.”  The NDRB found no evidence in the record that the applicant’s urinalysis was improperly conducted.  The applicant provided no evidence or post service documentation to support his request for upgrade.  Additionally, the Board found the applicant was dual processed for drug abuse and missing ship’s movement.  Relief is not warranted. 

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 15560), Change 7/86, effective 
15 Dec 86 until 14 Jun 87, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO 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/A9235/A0157/A9217