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NAVY | DRB | 2001_Navy | ND01-00460
Original file (ND01-00460.rtf) Auto-classification: Denied


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

ex-ADAN, USN
Docket No. ND01-00460

Applicant’s Request
The application for discharge review, received 010301, requested that the characterization of service on the discharge be changed to honorable. The applicant requested a personal appearance discharge review. The applicant did not list any representative on the DD Form 293.

Decision

A personal appearance discharge review hearing was conducted in Washington, D.C. on 011010. 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 at the time of issue. 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 3630620.

A personal appearance discharge review hearing was conducted in Washington, D.C. on XXXXXX. 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 3630620.

 If appropriate add the following:
The NDRB did note an administrative error on the original DD Form 214. Block 28, Narrative Reason for Separation should read: “_____________” vice “__________”. The original DD Form 214 should be corrected or reissued as appropriate.






THIS IS THE CORRECT SHELL FOR MISCONDUCT DRUGS effective 961003 - 971211.
SPN CODE HKK. (Discharged for misconduct due to drug abuse)
THE FINDING FOR Drug abuse, (3630620.96) IS EFFECTIVE 961003 - 971211.
THE SPN CODE IS EFFECTIVE 930628 - PRESENT

A general discharge is written GENERAL (UNDER HONORABLE CONDITIONS)


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

1. In reference to my NJP and violations of the UCMJ. Never was I able to consult with counsel certified under UCMJ Article 27B. Never was I advised of my rights.

2. I maintain to all charges of Article 112. Never did use any Drugs. I was caught up in a witch-hunt, within my command (10% of Enlisted force discharged for Drug use.) The only evidence used against me was a positive Urinalysis result (LSD), which I insist was corrupt or the result of me unknowingly ingesting LSD, which brings on Issue 3.

 3. The urinalysis results do not prove "that the user at some time would have experienced the physical and psychological effects of the drug". United States v. Campbell U.S. Court of Appeals for the Armed Forces, Docket 97-0149/AR. This precedence excludes wrongful use of LSD on my behalf Examine the following: S_, Judge (dissenting):

I would grant the petition for reconsideration with full oral argument. I dissented from the Court's prior opinion in this case, which created the requirement for scientific proof "that the user at some time would have 'experienced the physical and psychological effects of the drug."' United States v. Campbell , 50 MJ 154, 160 (1999). The majority does not meaningfully depart from this position today, so I again dissent.

Above is the decision on Government's Petition for Reconsideration, decided March 22, 2000.

Therefore a positive urinalysis result does not indicate "wrongful use." I never experienced the physical and psychological effects LSD.

4. In answer to my violation of UCMJ 129, there was no physical contact nor was there intent on my part. I was just going a little to fast (in my car) as I passed the Base Guard. I might add this is my favorite violation. The creativity involved in turn speeding into assault is genius!

5. I believe the DARR OPNAV 5350-2 report is insubstantial because it was filled out when I was not under CDR. E_'s command. Therefore Mr. E_ had no jurisdiction or authority to act as my Commanding Officer. See history of Assignment in my service record. On 20Mayl997 I checked out of VFA-136, never to return. The report was obviously filled out when I was no longer a subordinate to Mr. E_. I was attached to NAS JAX undergoing treatment at ARC. Therefore the Signature is in error because Mr. E_ was not my Commanding Officer when the DARR was signed. On Line 28 location is stated ARC. The date Line 6 is 21 APR 1997 on Form this is 29 days prior to treatment.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Excerpt, US Code: Title 18, Section 241, 1p.
Excerpt, US Code: Title 18, Section 242, 1p.
Excerpt, US v. Christopher Campbell; No. 97-0149, 29pp.

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: None
         Inactive: USNR (DEP)     911127 - 921021  COG

 Period of Service Under Review :
Date of Enlistment: 921022               Date of Discharge: 970624

 Length of Service (years, months, days):

         Active: 04 08 03
         Inactive: None

 Age at Entry: 21                          Years Contracted: 4 (7 months extension)

 Education Level: 14                        AFQT: 73/80

 Highest Rate: AD3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.95 (4)    Behavior: 3.95 (4)                OTA: 3.95        4.0 evals
 Performance: 3.30 (3)    Behavior: 2.30 (3)                OTA: 2.81        5.0 evals

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM, SSDR (2), SASM, NUC, GCM, AFSM (2), MUC, NM

 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 3630620.

 Chronological Listing of Significant Service Events :

960805:  Applicant's enlistment extended for 7 months.

 970402:  NJP for violation of UCMJ, Article 112: Drunk on duty, violation of UCMJ, Article 112A: Use of a controlled substance, marijuana and LSD, violation of UCMJ, Article 128: Assault upon a sentinel.
         Award: Reduction to ADAN. No indication of appeal in the record. [Extracted from Evaluation Report & Counseling Record dated 15Apr97.]
970410:  Competency for duty, A: ETOH abuse/dependence. P: Rec substance treatment. OK for duty.

970424:  Drug and Alcohol Abuse Report: Hallucingens (LSD) abuse, less than monthly, ashore off duty. Unit sweep urinalysis Mar/Apr 97. Medical recommended separate not via VA hospital. Physician found applicant not dependent and recommended separate not via VA hospital. Commanding officer recommended separate not via VA hospital. Comments: ADAN (applicant) was good worker, but started having personal problems which resulted in the decline of his military career. He was also found to have a problem with alcohol and is currently in rehab. Once rehab is complete, he will be processed from the military due to wrongful use of marijuana.
970428:  Medical evaluation for drug/alcohol dependency found the applicant to be a physically/psychologically dependent on alcohol.

970520:  Applicant elected inpatient/outpatient treatment at a military facility due to alcohol/drug dependence prior to discharge. Applicant held beyond normal date of expiration of enlistment to receive alcohol and/or drug treatment at NAS Jacksonville, FL. Applicant consents to be retained to receive treatment.
970520:  Applicant admitted to Addictions Rehabilitation Clinic, Jacksonville, FL. Diagnoses: Alcohol dependence with physiological dependence, Nicotine dependence, drug abuse, Macrocytosis.

970624:  DD Form 214: Applicant discharged under other than honorable conditions by reason of misconduct due to drug abuse (use).

 000727:  NDRB documentary record review Docket Number ND00-00170 conducted. Determination: discharge proper and equitable; relief not warranted.

Discharge package missing from records.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 970624 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).

Issues 1-3. The applicant’s discharge package was unobtainable. The Board presumed regularity in the conduct of the applicant’s NJP, the finding of guilty in violation of Article 112a, for wrongful use of illegal drugs and subsequent discharge from the U.S. Navy. The applicant did not offer any substantial or credible evidence to rebut the presumption. Relief denied.

Issue 4. The applicant withdrew this issue during his personal appearance hearing.

Issue 5. The Board found the allegation that the OPNAV 5350-2 dated 24 April 1997 was incorrectly completed had no impact on the characterization of the applicant’s discharge. The applicant’s positive urinalysis test, while attached to VFA-136, was the basis of his discharge. Relief is denied.

 The applicant has exhausted all opportunities to have his discharge reviewed by the NDRB. Any further requests for recharacterization of his discharge must be petitioned through the Board of Correction of Naval Records (BCNR).
Pertinent Regulation/Law (at time of discharge)

 A . Navy Military Personnel Manual, (NAVPERS 15560C), Change 14, effective
03 Oct 96 until 11 Dec 97, Article 3630620 SEPARATION OF ENLISTED PERSONNEL 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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