Author: CAP
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Company: NCPB

Docket No. ND01-01057

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

 ex-HM2, USN
Docket No. ND01-01057

Applicant’s Request

The application for discharge review, received 010807, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to service completed or equivalent.  The applicant requested a documentary record discharge review.  The applicant did not list any representative on the DD Form 293.  Subsequent to the application, the applicant obtained representation by the Veterans of Foreign Wars.

Decision

A documentary discharge review was conducted in Washington, D.C. on 020307.  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 and narrative reason 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.  We contend that the discharge is improper.  The applicant has submitted evidence to support his contention that he did not commit drug abuse.  There is nothing in the record that supports the allegations that Mr. (applicant) used drugs.  Therefore, we ask that you change the discharge as requested.

Documentation

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

Copy of DD Form 214
Copy of Evaluation Report and Counseling Record
Copy of police record check from Osceola County, Florida dated August 1, 2001
Copy of police record check from City of Kissimmee, Florida dated July 31, 2001
Job reference dated June 25, 2001
Letter from Member of Congress dated June 18, 2001
Letter to congressman dated June 11, 2001
Copy of facsimile transmittal (4 pages)
Copy of FedEx (sender's copy) (2 copies)
Copy of cancel separation orders dated June 15, 2001
Letter from applicant to Naval Military Personnel Command dated June 1, 2001
Copy of report and disposition of offense(s) dated January 4, 2001 (2 copies)
Copy of accused's notification and election of rights dated January 12, 2001
Forty-eight pages from applicant's service record
Copy of e-mail dated May 30, 2001
Copy of e-mail dated May 9, 2001
Copy of NJP Rights
Character reference
Character reference
Character reference dated January 26, 2001
Character reference
Character reference
Character reference
Character reference
Letter from applicant dated February 16, 2001
Copy of Class Schedule/Grade Report
Copy of e-mail dated May 30, 2001
Copy of e-mail dated March 8, 2001
Copy of registry transcript dated May 22, 2001
Copy of academic institution courses taken on active duty dated May 22, 2001
Copy of travel certificate, separation without orders dated May 30, 2001
Copy of e-mail dated May 30, 2001
Copy of e-mail dated March 15, 2001
Copy of e-mail dated May 31, 2001
Copy of e-mail dated May 21, 2001
Copy of defense exhibits
Copies of evaluations from prior enlistments
News article dated February 25, 1999 (2 copies)
Congressional response dated September 26, 2001
Copy of course registration dated August 25, 2001
        Class schedule, grade report dated February 8, 2002

PART II - SUMMARY OF SERVICE

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

	Active:   USN			880105 - 911112	HON
		   USN			911113 - 960711	HON
		   USN			960712 - 001130	HON
	Inactive: USNR (DEP)	870626 - 880104	COG

Period of Service Under Review:

Date of Enlistment:  001201		Date of Discharge:  010601

Length of Service (years, months, days):

	Active:    00  06  01
	Inactive:  None

Age at Entry:  32			Years Contracted:  2

Education Level:  12			AFQT:  63

Highest Rate:  HM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (1)	Behavior:  3.00 (1)		OTA:  3.43

Military Decorations:  None

Unit/Campaign/Service Awards:  HSM, OSR (5), MUC (2), CGSOSR, GCM (3), AFSM, NDSM

Days of Unauthorized Absence:  None

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:

001226:	NAVDRUGLAB, Jacksonville, FL reports applicant's urine sample, received 001218, tested positive for THC.

010104:	Report and Disposition of Offense(s) Wrongful use marijuana on or about 13 December 2000.

010118:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

010122:	Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

010313:	An Administrative Discharge Board, based upon a preponderance of the evidence and by a vote of 2 to 1, found that the applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge general (under honorable conditions).

010412:	Commanding officer recommended retention in mandatory processing for discharge by reason of misconduct due to drug abuse (use). Commanding officer’s comments:
(1) I strongly recommend that HM2 (applicant) be retained on active duty.

(2) HM2 (applicant) is a 13-year veteran of the U.S. Navy with a previously flawless record of good service.  His family members and supervisors were surprised at his urinalysis result and do not honestly believe he abused any drugs.

(3) HM2 (applicant) refused NJP, demanded Court Martial to prove innocence, but was denied Court Martial due to low level of THC in urine.

(4) He has consistently tested negative in all subsequent surveillance urinalysis tests.  Interestingly, he reenlisted 10 days prior to ' the' Command-wide Urinalysis.  He goes to night school (college).  He is a dedicated worker who wants to succeed and better provide for his family.  Drug abuse does not fit his character.  He even voluntarily elected to make a sworn statement and take questions to defend himself.

(5) HM2 (applicant) has a plausible explanation for the THC in his urine - a new weight reduction diet involving use of bulk granola, known to possibly contain hemp seed or hemp oil for health reasons (source of omega-3 fatty acids).  The family immediately stopped use of granola products.  A Navy toxicologist indicated that use of granola could produce positive THC tests.  The Administrative Separation Board was split and overall conclusion was based only on positive urinalysis, for which there is a-plausible explanation, and not on any other evidence of drug abuse.

(6) The results of this case will definitely impact on all the enlisted personnel at this Command.  My concern is that there is fair and equitable treatment of all concerned Navy-wide.  In this case, given the excellent service history, the plausible explanation for THC, and lack of evidence of drug abuse, I disagree with the Administration Separation Board's Findings.

010423:	CNPC directed the applicant's discharge general (under honorable conditions) by reason of misconduct due to drug abuse (use).  [Extracted from supporting documents submitted by applicant.]

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 010601 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).

Issue 1.  The Board found no impropriety or inequity in the actions of the applicant’s command in his administrative separation proceedings.  The applicant’s positive urinalysis constituted use of an illegal drug.  The applicant’s commanding officer had the authority to conduct an investigation and make a determination on whether or not the drug use was or was not wrongful.  However, this action was not taken and the applicant was referred for administrative separation.  These actions, including the Administrative Discharge Board’s decisions, were proper and equitable.  Drug abuse warranted processing for separation, normally under other than honorable conditions. No other narrative reason more clearly describes the circumstances surrounding the applicant’s processing for administrative separation.  The discharge was proper and equitable.  Relief denied.

Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the applicant’s enlistment.  Additionally, 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 civilian life, subsequent to leaving the service.  However, the NDRB is authorized to consider outstanding post-service factors in the recharacterization of a discharge, 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.  Verifiable proof of any post-service accomplishments must be provided in order for the applicant to claim post-service conduct and behavior as a reason to upgrade a less than Honorable discharge.  Evidence of continuing educational pursuits, an employment record, documentation of community service, certification of non-involvement with civil authorities and proof of his not using drugs, are examples of verifiable documents that should have been provided to receive consideration for relief, based on post-service conduct.  The applicant did not provide sufficient documentation to warrant an upgrade to his discharge.  He is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  The applicant can provide additional documentation to support any claims of post-service accomplishments at that time.  Legal representation at a personal appearance hearing is highly recommended but not required.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 31, dated 20 Feb 01, effective 12 Feb 2001 until Present, 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
___

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/A9401/A9317/A9217/A0157/A9439/A9221