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NAVY | DRB | 2001_Navy | ND01-00390
Original file (ND01-00390.rtf) Auto-classification: Denied


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

ex-SM3, USN
Docket No. ND01-00390

Applicant’s Request
The application for discharge review, received 010208, requested that the characterization of service on the discharge be changed to Honorable. 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 010907. 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, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.
PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1. During the time I was tested for the THC, I was around several people at a party. All of these people were smoking marijuana. I did not smoke any of these drugs. There was a lot of smoking at the party and I did not smoke any type of drug. I believe the test may have shown positive, but this was not due to any smoking on my behalf.

2. (Equity Issue) This former member further requests that the Board include provisions of SECNAVINST 5420.174C, enclosure (1), Chapter 9, as it pertains 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:
Copy of DD Form 214

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USN                        890824 - 940808  HON
                  USN                       940809 - 990804  HON
         Inactive: USNR (DEP)     None

 Period of Service Under Review :
Date of Enlistment: 990805               Date of Discharge: 991217

 Length of Service (years, months, days):

         Active: 00 04 13
         Inactive: None

 Age at Entry: 28                          Years Contracted: 6

 Education Level: 12                        AFQT: 25

 Highest Rate: SM2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMA                  Behavior: NMA             OTA: NMA

 Military Decorations: None

 Unit/Campaign/Service Awards: AFEM, NDSM, SSDR (3), 9MM Expert Ribbon, KLM, GCM

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 :

990805:  Reenlisted at NATTC PENSACOLA, FL for 6 years.

 991117:  NAVDRUGLAB JACKSONVILLE, FL urinalysis report indicates applicant tested positive for THC [Extracted from Case File].
991123:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance (marijuana).
         Award: Forfeiture of $400.00 per month for 2 months, restriction and extra duty for 30 days, reduction to E-4. No indication of appeal in the record.
991123:  Applicant notified of intended recommendation for discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse [Extracted from Case File].
991123:          Applicant advised of his rights and having elected not 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 [Extracted from Case File].
991207:  Commanding officer recommended discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse (Use). Commanding officer’s comments: [(verbatim), if appropriate]: [Extracted from Case File]

991215:  Commander, Amphibious authorized the applicant's discharge under Other Than Honorable conditions by reason of misconduct due to Drug abuse (Use) [Extracted from Case File].

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 991217 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).

Issue 1. The applicant states he was at a party where people were smoking marijuana but he did not smoke any type of drug. The applicant’s urine sample was tested by the NAVDRUGLAB Jacksonville, and the results showed the sample contained THC. The applicant did not provide any evidence that there was an error in the handling, testing or reporting of the results of his urinalysis. There is no evidence in the applicant’s service record that supports his claim of innocence. The discharge was proper and equitable. Relief denied.

Issue 2. The applicant requests the Board to include provisions of SECNAVINST 5420.174.C, enclosure 1, chapter 9, as it pertains to post-service conduct. The applicant did not provide any post-service documentation for the Board to consider. 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 clemency, based on post-service conduct. The applicant did not provide any of these documents. 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 24, effective 20 May 99 until 26 March 2000, 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      


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