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

ex-BM3, USNR
Docket No. ND01-00415

Applicant’s Request

The application for discharge review, received 010213, requested that the characterization of service on the discharge be changed to honorable.  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 011031.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the 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 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues (verbatim)

1.  On Thursday, June 8, 2000, I flew from San Diego CA to Sacramento CA to visit my family full aware that I had duty as officer of the deck in port on Sunday, June 11, 2000 the first watch.  So while getting ready to board my flight to Sacramento Airport the Sacramento Sheriffs approached me and asked for my I.D. and said I had a traffic violation warrant for my arrest and I would serve 10 days in jail.  My lawyer D____ A___ G___ had told me after getting this letter that is enclosed as Document 1# that the problem was handled and Document 2# money orders show that I payed him for the services.  Document 3# shows that I did go to jail. I called my ship and talked to the Command Duty Officer then my Department Head LT B_____, He in returned called my father in Sacramento to see if he could do anything else.  So my ship knew where I was, when I got out on Saturday June 17, 2000 I could not go directly to the ship and I called my Department Head and informed him of my problems that occurred at home while I was in jail for 10 days and that I would need 2 days to clear it up.  When I got to the ship they drug tested me and while I was in jail these guys had drugs while they were in jail I wanted to tell but I was told of various things that could happen to me if I told.  I was told by various people on my ship if I come up positive just say I did it because it would take 6 months to a year to prove or for them to decide if someone in jail had found someway of putting this in my coffee or food.  My orders were to report to Hawaii reserve center on Oct. 1, 2000 so this would mess up my new orders.  So I did admit to doing drugs.  I had never had a drug conviction or been to captains mass in my 7 years of service please review my service record and you will see I was a 4.0 sailor doing my hole 7 years service.

Documentation

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

Copies of DD Form 214 (2)
Copies of Property Receipt/Report from Sacramento County Sheriff's Department
Letter from Attorney at Law D___ A. G____
3 Receipts and Business Card from Attorney at Law D____ A. G___ 

PART II - SUMMARY OF SERVICE

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

	Active:   USN			880831- 920830	Hon (RELACDU)
	Inactive: USNR		920831-970906	Hon (Unable to Verify)

Period of Service Under Review:

Date of Enlistment:  970907		Date of Discharge:  000804

Length of Service (years, months, days):

	Active:    02  10  28
	Inactive:  None

Age at Entry:  31			Years Contracted:  5 

Education Level:  12			AFQT:  32

Highest Rate:  BM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.33 (3)	Behavior:  4.00 (3)		OTA:  3.81

Military Decorations:  None

Unit/Campaign/Service Awards:  SSDR, 9MM Expert Shot Medal, M14 Rifle Expert 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:

970907:	Reenlisted at NR CHB DET 3 NMCRC SACRAMENTO, CA for 5 years.

000630:	NAVDRUGLAB SAN DIEGO urinalysis report indicates applicant tested positive for cocaine.

000714:	NJP for violation of UCMJ, Article 112a: Wrongful use of controlled substance.
Award:  Forfeiture of 1/2 months pay for 2 months, restriction and extra duty for 45 days, reduction to E-4.  No indication of appeal in the record.

000718:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse and commission of a serious offense.

000718:	Applicant advised of his rights and having elected not to consult consulted with counsel certified under UCMJ Article 27B, elected to waive all rights.

000718:	Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). 

000803:	COMNAVSURFPAC SAN DIEGO, CA 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 000804 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 response to the applicant’s issue 1, the applicant tested positive for cocaine on a urinalysis test conducted by NAVDRUGLAB San Diego.  A positive urinalysis test requires mandatory processing for separation.  Separation for use of illegal drugs typically warrants a discharge characterization of Other Than Honorable, for drug abuse.  Based on Navy regulations, the discharge was proper and equitable.  The applicant provided no documentation to show that there was an error in fact, law, procedure or discretion, at the time of discharge.  Relief is denied.

The following is provided for the applicant’s edification.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge (D).  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 27, effective 27 March 2000 - 11 Feb 2001, 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 "afls10.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