Search Decisions

Decision Text

NAVY | DRB | 2000_Navy | ND00-01070
Original file (ND00-01070.rtf) Auto-classification: Denied


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

ex-SR, USN
Docket No. ND00-01070

Applicant’s Request
The application for discharge review, received 000920, requested that the characterization of service on the discharge be changed to general/under honorable conditions. The applicant requested a documentary record discharge review. The applicant listed AMERICAN LEGION as his representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 010313. 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 of the discharge shall not change. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/ Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. There is no Military Record of NJP /Article 15. There is one incident only dated on or about June 16, 1987 in which refer to this same case.

2. Pursuant to the Naval Military Manual 3630620 (2b) an Honorable, General, or Entry Level Separation under guidance in Article 3610300 when separation process is based solely on urinalysis test results which, under OPNAVINST 5350.4, may not be used to characterize service. It is clear that H____ characterize service was based on OPNAVINST 5350.4 (Exhibit A) a urinalysis test, in which he was issued an under other than Honorable Discharge in violation of this Navy Regulation.

3. In the case at Bar, the Department of Navy noted that the alleged urinalysis (3630620) failed to determine if separation is mandatory. Failed to determine if counseling and / or rehabilitation was applicable prior to separation.

4. Petitioner states that at all time relevant he was denied the right to counsel and that no one explained his rights, in clear violation of MILPERSMAN 3630650 (3). There was an investigator whom took part in the tribunal that heard this case. But, there was never anyone informing me of my rights and alternatives that I had in this matter. However, there was no court/hearing stenographer at the proceedings and the court did not have the authority to discharge him with a under other than Honorable discharge based on a mere urinalysis test. The urinalysis was compelled without probable cause or justification and used without further cause to discharge this petitioner as in Giles v. Secretary, 627 F.2d 554 (1980), in which the court modified and remanded.

5. Petitioner states that the Department of Navy did not follow it own regulation in this case, by violation of the Naval Military personnel Manual with deliberate indifference. In Blassingame vs Secretary of the Navy, 866 F.2d 556 (1989) the court held that error of non-compliance with the terms of its Separation Manual, believed violated the Administrative Procedure Act. There is no Notifications of rights received by this petitioner. Further, in White v. Secretary of the Army, 878 F.2d 501 (1989) the court held that procedural impropriety was not correctable and service member would be treated as it he had completed service.

6. This petitioner prays for reinstatement, back pay, and restoration of all rights and privileges an a Honorable Discharge for the convenience of the Government.

7. Further, this petitioner claims that discrimination was part of the violations that occurred, the majority of young African American men had no background in law or due process rights, and we were given bad discharges on regular basis. This discharge was unfair compared to the type given to others then or today for the same conduct. I Swear that all the above information is True to the best of my knowledge.

 Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Copy of DAAR (Exhibit A)
Copies of DD Form 214 (2)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        None
         Inactive: USNR (DEP)     870121 - 870122  COG

 Period of Service Under Review :
Date of Enlistment: 870123               Date of Discharge: 871014

 Length of Service (years, months, days):

         Active: 00 08 22
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

Education Level: 12                        AFQT: 43

 Highest Rate: SR

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.20 (1)    Behavior: 2.80 (1)                OTA: NOB

 Military Decorations: None

 Unit/Campaign/Service Awards: None

Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct – Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.

 Chronological Listing of Significant Service Events :

870129:  Applicant briefed on Navy’s Drug and Alcohol Abuse Policy as set forth in OPNAVINST 5350.4.

870518:  Retention Warning: Advised of deficiency (Failure to go or leaving place of duty and insubordinate conduct towards a warrant, noncommissioned, or petty officer), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

870616:  NJP for violation of UCMJ, Article112a: Wrongful use of cocaine.
Award: Forfeiture of $329.00 per month for 2 months, restriction to NAVSUBASENLON CT for 45 days, extra duty for 45 days. No indication of appeal in the record.
870707:  Medical evaluation for drug abuse found the applicant to be not drug dependent, not amenable, recommended for separation not via VA Hospital. Additional Comments: Patient claims he used cocaine only once. I feel he is not psychologically dependent.

870730:  DAAR indicates applicant is not dependent, not amenable, recommended for separation not via VA Hospital.

870810:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
870831:          Applicant advised of his rights and having elected to consult with counsel certified under UCMJ Article 27B, elected to waive all rights except the right to obtain copies of the documents used to support the basis for the separation.
870909:  Commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

871003:  CNMPC 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 871014 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).

 The applicant’s first issue states: “There is no Military Record of NJP /Article 15. There is one incident only dated on or about June 16, 1987 in which refer to this same case.” The NDRB found record of the NJP on a Court Memorandum on 16 June 87 for Violation of UCMJ Article 112a. Relief is not warranted.

The applicant’s second issue states: “Pursuant to the Naval Military Manual 3630620 (2b) an Honorable, General, or Entry Level Separation under guidance in Article 3610300 when separation process is based solely on urinalysis test results which, under OPNAVINST 5350.4, may not be used to characterize service. It is clear that H____ characterize service was based on OPNAVINST 5350.4 (Exhibit A) a urinalysis test, in which he was issued an under other than Honorable Discharge in violation of this Navy Regulation.” After careful review of the applicant’s service record and type of drug test (Service Directed) that resulted in the applicant’s NJP and discharge, the Board found that based on OPNAVINST 5350.4 disciplinary proceedings and characterization of service as Other Than Honorable were appropriate. Relief based on this issue is not warranted.

The applicant’s third issue states: “In the case at Bar, the Department of Navy noted that the alleged urinalysis (3630620) failed to determine if separation is mandatory. Failed to determine if counseling and / or rehabilitation was applicable prior to separation.” The Board found this issue without merit. Under 3630620, separation processing is mandatory and the characterization of discharge is normally Other Than Honorable. The applicant’s case met with the guidelines set forth in 3630620 as well as OPNAVINST 5350.4. The record further shows the applicant was screened for drug dependence by LT W_F_N_, LT, MC, USNR on 7 July 1987 and found not dependent. Relief is not warranted.

The applicant’s fourth issue states: “Petitioner states that at all time relevant he was denied the right to counsel and that no one explained his rights, in clear violation of MILPERSMAN 3630650 (3). There was an investigator whom took part in the tribunal that heard this case. But, there was never anyone informing me of my rights and alternatives that I had in this matter. However, there was no court/hearing stenographer at the proceedings and the court did not have the authority to discharge him with a under other than Honorable discharge based on a mere urinalysis test. The urinalysis was compelled without probable cause or justification and used without further cause to discharge this petitioner as in Giles v. Secretary, 627 F.2d 554 (1980), in which the court modified and remanded.” The record clearly shows the applicant gave up his right to talk with an attorney on 870612 prior to his NJP on 870616. The record shows he elected to speak with counsel on 31 Aug 87 (for discharge), and further shows that after consulting with an attorney, he understood his privileges and discharge proceedings. Additionally, the type of urinalysis the applicant took, “service directed “A” School”, allows for evidence to be used in disciplinary proceedings as well as usable for the characterization of service (OPNAVINST 5350.4). Relief based on this issue is denied.

The applicant’s fifth issue states: “Petitioner states that the Department of Navy did not follow it own regulation in this case, by violation of the Naval Military personnel Manual with deliberate indifference. In Blassingame vs Secretary of the Navy, 866 F.2d 556 (1989) the court held that error of non-compliance with the terms of its Separation Manual, believed violated the Administrative Procedure Act. There is no Notifications of rights received by this petitioner. Further, in White v. Secretary of the Army, 878 F.2d 501 (1989) the court held that procedural impropriety was not correctable and service member would be treated as it he had completed service.” The Board found no error of non-compliance in the applicant’s service record. The applicant was notified of consideration for discharge on 12 Aug 87, and after consulting with an attorney signed his Statement of Awareness And Request For, Or Waiver Of, Privileges on 31 Aug 87. The Board found the applicant was afforded due process and the separation was conducted in accordance with the regulations. Relief is not warranted.

The applicant’s sixth issue states: “This petitioner prays for reinstatement, back pay, and restoration of all rights and privileges an a Honorable Discharge for the convenience of the Government.” The NDRB can not make findings or effect reinstatement, back pay and restoration of all rights and privileges as requested. The applicant may petition the BCNR for relief in this matter. Relief by the NDRB is not warranted.

The applicant’s seventh issue states: “Further, this petitioner claims that discrimination was part of the violations that occurred, the majority of young African American men had no background in law or due process rights, and we were given bad discharges on regular basis. This discharge was unfair compared to the type given to others then or today for the same conduct. I Swear that all the above information is True to the best of my knowledge.” The applicant failed to provide any documentation to support his claim that he was discriminated against. The applicant was afforded due process, and the record shows, the applicant exercised his rights in the discharge proceedings. The NDRB found that contrary to the applicant’s assertion that his discharge was unfair compared to the type given to others then or today for the same conduct, the discharge was consistent with regulations in 1987 as well as today. Relief is denied.





Pertinent Regulation/Law (at time of discharge)

 A. Navy Military Personnel Manual, (NAVPERS 15560A), effective 15 Jun 87 until
10 Jan 89, Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO 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 " 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      


Similar Decisions

  • NAVY | DRB | 1999_Navy | ND99-00866

    Original file (ND99-00866.rtf) Auto-classification: Denied

    PART I - APPLICANT’S ISSUES AND DOCUMENTATION NJP Results: 45 days restriction, 45 days extra duty, forf $300.00 for 2 months, reduction in rate, process for separation in accordance with OPNAVINST 5350.4.850321: Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.850321: Applicant advised of his rights and having elected not to consult with counsel certified under UCMJ Article 27B, elected to waive all...

  • NAVY | DRB | 1997_Navy | ND97-01390

    Original file (ND97-01390.rtf) Auto-classification: Denied

    No indication of appeal in the record.860827: Medical evaluation found the applicant to be a drug abuser, but not drug dependent.860829: Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by the wrongful use of marijuana. The Commanding Officer’s recommendation for Administrative Separation by reason of misconduct due to drug abuse was forwarded by message to NMPC on 860913, and on 860917,...

  • NAVY | DRB | 1997_Navy | ND97-01366

    Original file (ND97-01366.rtf) Auto-classification: Denied

    ND97-01366 Applicant’s Request The application for discharge review, received 970912, requested that the characterization of service on the discharge be changed to general/under honorable conditions, and the reason for discharge be changed to “other than dishonorable”. Navy Military Personnel Manual, (NAVPERS 15560, Change 7/86, effective 861215 - 870614), Article 3630620, SEPARATION OF ENLISTED MEMBERS BY REASON OF MISCONDUCT DUE TO DRUG ABUSE, states:1. The Board would like to commend...

  • NAVY | DRB | 1997_Navy | ND97-01389

    Original file (ND97-01389.rtf) Auto-classification: Denied

    900815: Applicant discharged UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620. (1) Drug Abuse. The applicant was discharged on 900815 under other than honorable conditions by reason of misconduct due to drug abuse (A, Part IV).

  • NAVY | DRB | 1997_Navy | ND97-01339

    Original file (ND97-01339.rtf) Auto-classification: Denied

    PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Active: None Inactive: USNR (DEP) 810114-810625 COG Period of Service Under Review :Date of Enlistment: 810626 Date of Discharge: 840427 Length of Service (years, months, days):Active: 02 09 27 Inactive: None [EXTRACTED FROM CO’S MESSAGE]840307: Medical evaluation for drug abuse found the applicant to be not drug dependent. The record clearly documents the basis for the separation.

  • NAVY | DRB | 2000_Navy | ND00-00385

    Original file (ND00-00385.rtf) Auto-classification: Denied

    Documentation In addition to the service record, the following additional documentation, submitted by the applicant, was considered:Copy of decisional document of 960812 Statement from applicant dated February 23, 2000 Copy of resume PART II - SUMMARY OF SERVICE Prior Service (component, dates of service, type of discharge): Active: None Inactive: USNR (DEP) 870414 - 870816 COG Period of Service Under Review :Date of Enlistment: 870817 Date of Discharge: 910322 Length of Service (years,...

  • NAVY | DRB | 2002_Navy | ND02-01327

    Original file (ND02-01327.rtf) Auto-classification: Denied

    ND02-01327 Applicant’s Request The application for discharge review, received 20020917, requested that the characterization of service on the discharge be changed to honorable. 871214: Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse rehabilitation failure as evidenced by two positive urinalysis tests while on 4X6 urinalysis aftercare program; and misconduct due to drug abuse as evidenced by service...

  • NAVY | DRB | 1997_Navy | ND97-01344

    Original file (ND97-01344.rtf) Auto-classification: Denied

    In the case of drugs, this action may include trial by court-martial or administrative separation from the Navy. The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/Misconduct - Drug abuse (Use), authority: NAVMILPERSMAN, Article 3630620.The applicant was discharged on 910812 under other than honorable conditions by reason of misconduct due to drug abuse (A, Part IV). When he enlisted he signed a document which stated, in part, that he had abused drugs but would not abuse any...

  • NAVY | DRB | 2004_Navy | ND04-00721

    Original file (ND04-00721.rtf) Auto-classification: Denied

    ND04-00721 Applicant’s Request The application for discharge review was received on 20040330. The Applicant requests the characterization of service received at the time of discharge be changed to honorable or general (under honorable conditions). Other than the above exceptions, drug abuse must be processed using administrative board procedures (MILPERSMAN 1910-404) with Under Other Than Honorable (OTH) being the least favorable characterization of service considered.

  • NAVY | DRB | 2000_Navy | ND00-00875

    Original file (ND00-00875.rtf) Auto-classification: Denied

    The applicant requested a documentary record discharge review. PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW Discussion The applicant was discharged on 870429 under other than honorable conditions for misconduct due to drug abuse (use) (A). Additionally, the Board found the applicant was dual processed for drug abuse and missing ship’s movement.