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

ex-SR, USN
Docket No. ND03-00907

Applicant’s Request

The application for discharge review was received on 20030424.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the board in the Washington National Capital Region.  The Applicant listed the American Legion as the representative on the DD Form 293.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20040421.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB.  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 – commission of a serious offense, authority: NAVMILPERSMAN, Article 3630600.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Issues submitted by Applicant’s counsel/representative (AMERICAN LEGION) superseded the Applicant’s stated issues:

1.  “(Propriety Issue) This former member opines that his command failed to properly follow OPNAVINST 5350.4B which invalidated the findings that he possessed marijuana as well as his subsequent NJP, ADB and UOTHC discharge. 

2.  (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it to post-service conduct, in assessing the merits of this application.”   

Documentation

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

Applicant’s DD Form 214
Twenty-five pages from Applicant’s service record
Two pages from Navy Military Personal Manual
Character Witness Statement
Letter from Applicant
Medical Administrative Assistant Transcript

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	890915 - 891030	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  891101		Date of Discharge:  911009

Length of Service (years, months, days):

	Active:    01  11  09
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  69

Highest Rate:  SA

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  2.90 (2)	Behavior:  2.30 (2)		OTA:  2.90

Military Decorations:  None

Unit/Campaign/Service Awards:  BER, NDSM

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – commission of a serious offense, authority:  NAVMILPERSMAN, Article 3630600.

Chronological Listing of Significant Service Events:

891128:	Drug and Alcohol Abuse Report: Marijuana abuse.  Service directed urinalysis.  Commanding Officer recommended retention.  Comments: Mbr is an accession level recruit.  Has potential for future naval service.  Positive entry level urinalysis for THC, NAVDRUGLAB San Diego Msg No. 162028Z NOV 89.  Mbr issued page 13.  Will undergo mandatory urinalysis once a month during pre-accession trng IAW OPNAVINST 5350.4A.

910515:	Medical evaluation for drug abuse found no history of EOTH of drug abuse.  Recommended NADSAP due to stress of reported legal problems of NJP

910522:	NJP for violation of UCMJ, Article 91: Disobeying lawful order from Petty Officer on 910210, violation of UCMJ, Article 107: Make false official statement to San Diego Shore Patrol on 910410, violation of UCMJ, Article 112A: Wrongfully possess marijuana on 910210.
	Award: Forfeiture of $376 per month for 2 months, restriction and extra duty for 45 days, reduction to SR, oral admonition.  No indication of appeal in the record.

910531:	Drug and Alcohol Abuse Report: Marijuana abuse, shipboard, abuse denied.  Physician found Applicant not dependent and recommended Level I treatment.  Commanding Officer recommended separation.  Comments: CO determined mbr to possess ZERO potential for further service and to be not alcohol/drug DEPENDENT req’d no education/tx  M/O screening (D_) 15MAY91: denies drug usage, not alcohol/drug dependent, NADSAP would be beneficial to mbr for stress of recent proceedings this rpt not IAW time restraints due due to avoiding redundant paperwork (Drug Abuse Advisory 3/89) and waiting for evals/discipline to be completed (OPNAVINST 5350.4B encl 12 para 1): 10FEB91 incident, 10APR91 additional chrgs, 19APR91 additional chrgs, 15MAY91 NJP resched due to non-availability of witness, 15MAY91 M/O screening, 22MAY91 NJP. 

910708:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to drug abuse, both as evidenced by your CO’s NJP on 22 May 1991.

910712:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

910819:	An Administrative Discharge Board, based upon a preponderance of the evidence and by an unanimous vote, found that the Applicant had committed a serious offense, and by a vote of 2 to 1 found that the Applicant had committed drug abuse, and by an unanimous vote that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

910930:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense and misconduct due to drug abuse.  Commanding Officer’s comments (verbatim): Seaman Recruit F_ (Applicant) was charged with possession of marijuana on board USS DIXON (AS 37).  A First Class Petty Officer who saw SR F_ (Applicant) in possession of a marijuana cigarette was quite certain of what she saw. Although the marijuana cigarette was never found, the prior commanding officer authorized a probable cause search of SR F_ (Applicant) locker. SR F_ (Applicant) had small baggies, one of which contained vegetable matter, in his locker. The matter tested positive for marijuana using a field reagent test kit. The entire amount of vegetable matter was used for the rest. During SR F_ (Applicant's) NJP hearing, he changed his story several times about what was in his hand. Captain B_ determined at the NJP hearing that SR F_ (Applicant) had possessed marijuana, based on all the evidence he evaluated.
Counsel for the Respondent mentioned requirements for field tests to be confirmed by DOD laboratories in his letter of deficiency. The references he stated apply to urinalysis, not reagent kits used to identify substances. Counsel for the Respondent states that a negative urinalysis on the day the vegetable matter was seized is further evidence that no misconduct took place. The Respondent was charged with possession, not use, of marijuana, so a negative urinalysis would not address possession of marijuana.
In addition to the marijuana offense, SR F_ (Applicant) willfully disobeyed a petty officer when she told him to go with her to the Master-at-Arms office. SR F_ (Applicant) admitted that he made a false official statement to law enforcement officials. This blatant disregard for authority is unacceptable and detracts from good order and discipline. After a full and fair hearing, the Administrative Board found that he had committed the charged misconduct and drug abuse and recommended that he be separated with an Other than Honorable discharge. I concur with the findings arid most strongly recommend an expeditious Other than Honorable discharge.

911004:	BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to the commission of a serious offense.

950113:	NDRB documentary record review Docket Number ND94-00748 conducted.  Determination:  discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19911009 under other than honorable conditions for misconduct due to commission of a serious offense (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 Applicant states that his command failed to properly follow OPNAVINST 5350.4B.  The Applicant believes that this alleged failure invalidates the findings that he possessed marijuana as well as his subsequent Non-judicial Punishment, Administrative Discharge Board and Other Than Honorable discharge.  To permit relief, an error or inequity must be found to have existed during the period of enlistment under review.  The Applicant did not provide any documentation, to indicate there existed an error of fact, law, procedure, violation of regulation at the time of discharge.  Relief denied.

Issue 2.  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.  After a complete review of the entire record, including the evidence submitted by the Applicant, the Board determined that his discharge was appropriate and that his evidence of post-service conduct was found not to mitigate the conduct for which he was discharged.  Relief denied.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560C), effective 15 Aug 91 until 
04 Mar 93, Article 3630600, SEPARATION OF ENLISTED PERSONNEL BY REASON OF MISCONDUCT – COMMISSION OF A SERIOUS OFFENSE.

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