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Docket No. ND04-00845

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

 ex-MA3, USN
Docket No. ND04-00845

Applicant’s Request

The application for discharge review was received on 20040422.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record review.  The Applicant did not list any representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20041222.  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, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “My discharge is inequitable because of a single incident in 3 years over which I had little or no control over.  On the weekend of Nov 8 2003, I was at a friends house watching football, their other friends brought in and had smoked marijuana.  On a routine urinalysis I barely tested positive and the results proved my information to be true when I stated to my Navy Attorney that it can only be second hand smoke.  I requested court-martial through my lawyer Lt N_ after I went every piece of paper work with her and was persuaded that I have no chance of winning my case since it was drug related and settled with an other than honorable discharge.

From the very first Navy person I’ve talked to, all the way to the last Navy person I’ve talked to, have been either liars or misguiders.  I’ve been lied to from the beginning and misguided in the end.

Since my discharge I have found it very hard to adjust with lack of sleep at night.  Nightmares of chain of command that keeps riding my behind because they can.  Waking up and thinking the shadows on the wall are chiefs breathing down my neck.  I wake up in cold sweats sometimes and think I’m in boot camp again and that it is my hell provided to me after signing a contract.

I have trouble trusting people any more and tend to shy away, when before I considerated myself, pretty outgoing.

I have never felt so mistreated before in my life and now have had the pleasure of meeting injustice face to face, and the only person I have to thank is myself for having the courage to help defend our country.  I am requesting an honorable discharge for my honor, and being a man that worked with the most ill integrity having people that the Navy has molded”

Documentation

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

Reference Letter from E_ W. V_, dated March 10, 2003 (2 pages)
Reference Letter from M_ V_, dated March 25 2004 (2 pages)
Reference Letter from E_ H_, not dated (2 pages)
Reference Letter from E_ K_, dated March 12, 2004
Copy of Newspaper Article, dated March 17, 2004
Copy of Fax Cover Sheet
Copies of DD Form 214 (6)
Letter from Applicant, dated November 21, 2004
Separation Travel Orders

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	000929 - 001213	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  001214		Date of Discharge:  031231

Length of Service (years, months, days):

	Active:    03  00  17
	Inactive:  None

Age at Entry:  22			Years Contracted:  4 

Education Level:  09			AFQT:  52

Highest Rate:  MA3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.00 (3)	Behavior:  2.33 (3)		OTA:  3.01

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM

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:

031121:	NAVDRUGLAB, SAN DIEGO, CA, reported Applicant’s urine sample, received 031117, tested positive for THC.

031210:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

031210:	Applicant advised of rights and having elected to consult with counsel certified under UCMJ, Article 27(b), elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.

031215:	Applicant does not meet the diagnostic criteria for drug dependence or abuse.

031218:	Commanding Officer, Naval Air Station Whidbey Island authorized the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

040113:	Commanding Officer, Naval Air Station Whidbey Island advising Commander, Navy Personnel Command (PERS-832) of Applicant’s under other than honorable conditions discharge by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20031231 under other than honorable conditions for misconduct due to drug abuse (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).

Normally, to permit relief, an error or inequity must have existed during the period of enlistment in question.  No such error or inequity is evident during the Applicant’s enlistment.  Relief not warranted.

Issue 1:  The Applicant states his discharge was based on one isolated incident in “36 months.”  The civilian authorities treat some offenses with leniency because they are a first time incident on an otherwise clear record; however, to maintain proper order and discipline, the military does not view such offenses as minor infractions.  The Applicant’s service was marred by his positive urinalysis test.  There is credible evidence in the record that the Applicant used illegal drugs.  Mandatory processing for separation is required for sailors who abuse illegal drugs.  Separation under these conditions generally results in characterization of service under other than honorable conditions.  The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions.  Relief denied.
  
The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 2002 until Present, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - Drug Abuse.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review 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.