Author: CAP
Last saved by: joyce.meeks
Company: NCPB

Docket No. ND06-00278

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

FOR OFFICIAL USE ONLY

 ex-SK3, USNR-R
Docket No. ND06-00278

Applicant’s Request

The application for discharge review was received on 20051130.  The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable.  The Applicant requests a documentary record discharge review.  The Applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20061019.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, an impropriety in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was unanimous that the discharge shall change to:  GENERAL (UNDER HONORABLE CONDITIONS)/ by reason of misconduct due to drug abuse, Article 1910-146, formerly 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the attached document/letter: 

“1.  I should never have been discharged as counseling requirements were not met or waived, and so warrants an upgrade to honorable.  [A24.02]

At the time I was notified of the reason for my discharge I denied the allegations as false.  I informed my command that I wanted to pursue the matter further.  I maintained contact with the command and was advised of the information to contact the JAG office.  I was not told there was a deadline when I spoke with the YN in charge of the advising me of the allegations that I needed to put my request for an Administrative Board in writing.  When I contacted the JAG officer (at that time)Lt .JG W_, he advised me I had already been discharged.  The command did not even allow me time to present any evidence or witnesses to my character.  He himself was stunned that they had already discharged me, before allowing my time to consult with the JAG office.

2.  I was not allowed to see a lawyer to make a decision to give up my right to a board, and so warrants an upgrade to honorable.  [A69.08]

3.  Aside from this one incident, my service record was satisfactory, and so warrants an upgrade to honorable.  [A85.08]

4.  At the time I was discharged, during the initial background work the JAG officer conducted prior to our first meeting he was able to determine that I was 1 of 3 SK3 S_’s being discharged, all for similar reasons.  That in and of itself was suspicious, and so warrants an upgrade to honorable.

5.  At the time of the testing, I had just tested for my civilian employer.  I was frequently tested as I worked with hazardous materials and chemicals.  This was a requirement of my employment due to the nature of the position.  This was also randomly done, and had just been completed within 1 week of the testing at the reserve center.  I was negative for any amount of any substances.  The amount stated by the reserve center would have shown trace amounts of some kind in the similar testing completed by my employer but the test was negative for any kind of substance, and so warrants an upgrade to honorable.

6.  In addition I was at the time applying for a position with the California Dept of Corrections, who also tested me and the results were negative.  Due to the random testing by my employer just prior to and after the testing at the reserve center, the testing I was undergoing by the CDC I could not jeopardize my employment, or chance for future employment, and so warrants an upgrade to honorable.

7.  Since that time I have obtained my Class “A” commercial driver’s licence.  I am randomly tested by both my employer and the Department of Transportation and I have never tested positive for any substance use, and so warrants an upgrade to honorable.

8.  At the time in my unit there was another reservist who had tested positive to marijuana use, admitted to the use and was still retained in the unit.  He had tested positive twice and was still allowed to remain in the unit.  I had been advised my officers in my chain of command to admit guilt, and request a program.  I refused to admit guilt to an action I had not taken and was rushed out of the service prior to being allowed to refute the charges.  The punishment I received was too harsh-it was much worse that what others received for repeated offenses, and so warrants an upgrade to honorable.  [A94.06]

9.  I have been a good citizen since the discharge, and so warrants an upgrade to honorable.  [A92.22]”

Documentation

Only the service and medical records were reviewed.  The Applicant did not provide additional documentation for the Board’s consideration.

PART II - SUMMARY OF SERVICE

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

	Inactive:  Unknown*
	Active:    Unknown*

Period of Service Under Review:

Date of Enlistment:  19990728		Date of Discharge:  20010419**

Length of Service (years, months, days):

	Active:    01  08  09
	Inactive:  00  00  13

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  31

Years Contracted:  8***

Education Level:  12				AFQT:  46

Highest Rate:  SK3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.5 (2)			 Behavior:  3.0 (2)		OTA:  3.07

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Not Applicable.

*Commanding Officer’s letter dated 010412 shows Applicant’s Total Active Service as 00 years, 00 months and 00 days.  Medical evaluation on 990709 shows purpose of evaluation as “affiliation.”
  
**Date CNPC directed the Applicant’s discharge under other than honorable conditions by reason of misconduct due to drug abuse.

***Extracted from Commanding Officer’s letter dated 010412.  No contract is available in the record.

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MILPERSMAN, Article 1910-146, formerly Article 3630620.

Chronological Listing of Significant Service Events: 

990802:	Commenced active duty.

001121:	NAVDRUGLAB, San Diego, CA, reported Applicant’s urine sample, received 001113, tested positive for cocaine.

001201:	Sworn Affidavit of Service by Mail:  YN1 T_ V. Beach mailed the original notice by certified mail.

UNDATED:	Applicant’s letter to YN1 B_ regarding positive urinalysis, undated, unsigned.

010207:	Command requested medical review of positive urinalysis.

010209:	Administrative Remarks, NAVPERS 1070/613:  Commanding Officer, Naval Reserve Center, Fresno, CA discharged the Applicant, general (under honorable conditions), by reason of misconduct.  

010209:	History of Assignments, NAVPERS 1070/605:  Applicant discharged 010209.  No further entries.

010305:	Applicant notified of intended recommendation for discharge with the least favorable characterization of service as under other than honorable by reason of misconduct - drug abuse.  [Date extracted from Commanding Officer’s message of 010412.]

010412:	Commanding Officer, Naval Reserve Center, Fresno, CA, recommended discharge under other than honorable conditions by reason of misconduct - drug abuse.  Commanding Officer’s comments:  “Enclosure (1), Administrative Separation Processing Notice - Notification Procedure was mailed to member via certified mail on 010228.  Notice was received by member 010305 and the Return Receipt was received by this command on 010306.
	The DRUGLAB message was received by this command on 22 Nov 00 identifying member with a positive urinalysis for “cocaine”.  On Dec 2, 2000, the Command DAPA and the member’s Officer In Charge, personally delivered the information to SK3 S_(Applicant) that he had tested positive for drug abuse.  He vehemently denied any possible drug abuse and after talking with the DAPA and his OIC about his alternatives, he requested that NRC Fresno submit a “Medical Review” package to Navy Environmental Health Center, Norfolk, VA.  It was decided that member would have 30-45 days to gather the information to submit for a medical review.  The review was submitted to Norfolk on 07 Feb 01.  His reason to submit the medical review was to test for possible drug interactions that may cause a positive result for cocaine.  Upon receiving the medical review package via fax, one of the doctors from the Medical Review Office called the Reserve Center Commanding Officer on 07 Feb 01.  He stated that the drugs listed on the medical review letter wou1d not cause a positive result for cocaine.
	Upon receiving his Notice of Administrative Board Procedure, member called this command and requested information to Contact the NAS Lemoore Legal Office, located about 40 miles south of Fresno.  He was provided the requested information and did set up an appointment to talk to one of their lawyers.  Member has not contacted this command in over 30 days, thereby waiving his right for an admin board.
	It is recommended that member be processed for a discharge with a characterization of “Other Than Honorable”. SK3 S_(Applicant) is not recommended for retention in the Naval Reserve or the Individual Ready Reserve.”

010407:	Medical record shows Applicant had blood drawn this date.

010419:	CNPC directed the Applicant’s under other than honorable conditions discharge by reason of misconduct due to drug abuse.

020516:	Medical record closed this date due to discharge on 010424.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

On the DD Form 293, the Applicant requested his character of service be changed to honorable and indicated that he was discharged with a character of service of general (under honorable conditions).  After reviewing the evidence of record, the Board determined the Applicant’s discharge was directed by CNPC on 20010419 by reason of misconduct due to drug abuse (A and B) with a service characterization of under other than honorable conditions.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was equitable but not proper (C and D).  

Issues 1-2.  The Applicant contends that he contacted legal counsel in order to request an administrative discharge board.  The Applicant further contends that his legal counsel informed the Applicant that he had already been discharged, and therefore, he was not able to present his case before an administrative discharge board.  The evidence of record shows that the Applicant’s command, via forms NAVPERS 1070/613 and NAVPERS 1070/605, executed erroneous administrative entries in the Applicant’s service record that indicate that the Applicant was discharged by reason of misconduct to drug abuse with a characterization of general (under other than honorable conditions).  Therefore, the Board determined that the Applicant’s assertion, that his legal counsel informed him that he was “already discharged” when the Applicant sought an administrative discharge board, credible.  Though the Applicant’s command subsequently recommended the Applicant’s discharge under other than honorable conditions by reason of misconduct due to drug abuse and that recommendation was subsequently approved, the Board determined that there was substantial doubt that the Applicant’s discharge would have remained the same had the Applicant’s right to appear before an administrative discharge board been granted.  As such, the Board granted the Applicant relief and voted unanimously to change the Applicant’s character of service to general (under honorable conditions).  Partial relief granted.

Issue 3.  The Applicant contends that, “aside from this one incident” his service record was satisfactory.  Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline.  An under other than honorable conditions or general discharge is warranted when significant negative aspects of a member’s conduct or performance of duty outweigh the positive aspects of the member’s military record.  The Applicant’s service was marred by a positive urinalysis for cocaine.  Wrongful use of a controlled substance is considered a violation of Article 112a of the UCMJ and the commission of a serious offense.  Serious offenses are punishable by punitive discharge if adjudged as part of the sentence upon conviction at special or general court-martial.  The Applicant’s conduct, which forms the primary basis for determining the character of his service, reflects his willful failure to meet the requirements of his contract with the U.S. Navy and falls far short of that required for an upgrade of his characterization of service.  Relief on this basis is not warranted.

Issues 4-6, 8.  The Applicant implies that his discharge was inequitable because he was one of three SK3’s with the same last name that were being discharged for “similar reasons” and that this was “suspicious.”  The Applicant also contends that at the time of his testing for the Navy, the Applicant had just been tested by his civilian employer and the California Department of Corrections and that these tests were “negative.”  The Applicant also contends that his administrative separation was too harsh as others in his unit had tested positive for illegal drug use and were retained. The Applicant provided no documentation to support his claims regarding non-military substance abuse testing during his enlistment nor the Applicant provide any documentation to substantiate his claim that other service members in his unit were retained after testing positive for illegal drug use.  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 of general (under honorable conditions) or under other than honorable conditions.  Relief on the basis of these issues is not warranted.

Issues 7, 9.  The Applicant implies that his discharge is inequitable based on his post-service conduct.  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 Naval service.  The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review.  Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.  As of this time, the Applicant has not provided any post-service documentation for the Board to consider.  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.  The Applicant can provide documentation to support any claims of post-service accomplishments or any additional evidence related to this 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), Change 27, effective 27 March 2000 - 11 Feb 2001, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - Drug Abuse.

B.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 112a, wrongful use of a controlled substance.

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