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NAVY | DRB | 2002_Navy | ND02-00757
Original file (ND02-00757.rtf) Auto-classification: Denied


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

ex-BMSN, USNR
Docket No. ND02-00757

Applicant’s Request
The application for discharge review, received 020506, requested that the characterization of service on the discharge be changed to honorable. The Applicant requested 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 030311. 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.

.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

1. My discharge was inequitable because it was based on one isolated incident in 8½ years of service in the Ohio Army National Guard and the United States Navy with no other adverse action. I have always upheld the highest standards and action in the military service. My Honorable discharge from the Ohio Army National Guard is one proof of evidence. My military excellence award at Navy Boot Camp and my promotion to BM3 in less than 6 months is another. I have proof of mistakes made and statements of other sailors who saw these mistakes. I was not fairly treated at my separation proceedings. The Board was under pressure from Capt F_ because he had let a QM1 off because of cocaine related charges. The Capt. didn't want any more excuses and put pressure on the Board because we were leaving on a med cruise to Bosnia. Of course BM1 B_ made up stories about me and others were also made up. However, I never spent time with these people nor were they my friends but just sailors. I plead my innocent case again before you the Board. I have furthered my education, worked with the public, and have a good job. The record of my Navy discharge is the only negative mark I have against me. I ask for a fair overview of my records and documents that I have given you. My past record was clean and was clean at the time I was found guilty. Please review and give myself the chance for someone to realize the truth and redeem these past misfortunes. Thank You. (Signed C_ A. A_, Applicant)

2. Dear Naval Discharge Review Board,

My name is ( Applicant ) and I was formally in the United States Navy. I enlisted on January 30 th , 1992 for two years. I was dishonorably discharged in August of 1993. The reason was for a presumed violation of uniform code of military justice article 112a-wrongful use of controlled substances. I presented my case at Captains' Mast and had legal representation by LT S_ L_, JAGC, USN at the administrative board. I still to this day state my plea as innocent. I have written statements and questionnaires from various servicemen aboard the USS Normandy in which I was stationed upon. I also had and have physical evidence of urine label tape and I had urine bottles given to me from other servicemen as evidence. When I was called in front of the administrative board they had just dropped the charges against a 1 st class officer for cocaine violations due to his closeness to his men and superiors. Include were the facts that he had tenure in the navy. Captain F_ was furious at their results. I was asked to go to the administrative board at a later time to the fact that our ship was getting ready and leaving for the med-cruise operation over in Bosnia. I was reluctant but my legal rep LT S_ L_ told me to go ahead. My past military record in the Ohio Army National Guard is superior in no ill marks. My military career in the Navy up to this point was also very high with no marks. Just marks for improvement that we all need.
The arguments made by the administrative board included statements from QM1 M_ whom I already had a statement about the problems with the urinalysis. He did make statements at there were mistakes and the procedure of the urinalysis was all messed up. BM1 B_ statement about the vinegar and grape juice is unjustified. BM1 B_ told me not to retake the test as MA1 W_ told servicemen C_ not to either. They both stated that taking a second urinalysis would be irrelevant because it would not prove that we did not have THC in our system when we took the original test. It was LT R_'s first time giving a urinalysis test of this magnitude and also the first time on the ship. My argument is not the mailing of the bottles but the mishandling and facts of evidence found around the ship. LT R_ did in fact make statements copied on the summary of the separation proceedings at he did give away some urine bottles because they were more available. After hearing from BM1 B_, MA1 W_, and LTCG M_, the legal officer I would have the right to go on any diet and drink whatever I wanted due to the fact that another urinalysis test would not help me. So I dispute these so called statements against me. Captain F_ states that another administrative board would be a needless waste of government time and money. So who is he to determine my fate when I'm not guilty and there are flaws in the system at the time of my testing. Even the testing of the urinalysis in the laboratory is not 100% guaranteed but close I know. But there are still flaws in the system. I had given Captain F_ plenty of witness and statements about the errors they observed at the testing of the urinalysis. Also I had witness to the clubs in which I had been to also. The THC in my urine was a surprise and a mark against my integrity and honor in the Navy. So of course how could I have a witness to something that I didn't do.
So I'm asking to see if you can review this case and outcome that was held against me. I need to free my conscience of my innocent of the falsely offense that I was accused of. Your help and assistance in this matter will be greatly appreciated. Enclose is statements and questionnaires from servicemen on board, my military honors and records and ratings, my initial evidence to present at Captains mast, my Jags letter, and a copy of the summary of the separation proceedings. I stood my ground and prepared my case at Captains mast for the fight for my innocence. All I ask is for your fair judgment and response to my letter of concern. Thank you.

Sincerely, (Signed by the Applicant)
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of DD Form 214
Summary of Administrative Separation Proceedings dtd 5 Aug 93 (10 pages)
 CO, USS NORMANY's recommendation for discharge action dtd 6 Sep 1993 (2 pages)
CO, USS NORMANY's reponse to Lt L_'s ltr of Deficiency
Evidence Before Captains Mast/Lt S_ L, JAGC, USN, Letter of Deficiency (32 pages)
Military Records of DARNG/Navy Evals and Performance Records/College Records/Evals (46 pages)
Statements/Questionnaires from Shipmates and Officers (78 pages)
Applicant's Résumé

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: Army/ARNG      840810 - 850621  To report training
         Active: Army/ARNG        850622 - 850927  Rel from acdu
         Inactive: Army/ARNG      850928 - 910822  HON

 Period of Service Under Review :
Date of Enlistment: 920103               Date of Discharge: 931104

 Length of Service (years, months, days):

         Active: 01 07 26
         Inactive: 00 02 07

 Age at Entry: 25                          Years Contracted: 8

 Education Level: 16                        AFQT: 69

 Highest Rate: BM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.9 (2)     Behavior: 3.8 (2)                 OTA: 3.84

 Military Decorations: None

 Unit/Campaign/Service Awards: Marksman (M-16), Expert (Hand Grenade), ASR, NDSM, Battle "E"

 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 :

920309:  Reported for active duty for period of 24 months.

930114:  Acknowledged understanding of the Navy/Command policy toward drug/alcohol abuse.

930624:  NAVDRUGLAB Norfolk, VA: Urine sample received 15JUN93, resulted in positive for THC (marijuana).

930628:  NJP for violation of UCMJ, Article 112A: Wrongful use of a controlled substance.
         Award: Forfeiture of $688.68 per month for 2 months, restriction for 45 days, reduction to E-3 (suspended for 6 months). No indication of appeal in the record.
930629:  Applicant declined treatment at VA hospital for rehabilitation due to drug dependence prior to discharge.
Undated:         Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by the results of the command urinalysis on or about 4 June 1993 in which you tested positive for THC.

930701:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
930805:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to wrongful use of a controlled substance, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

930906:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use). Commanding Officer’s comments (verbatim): "After review of the finds of board, I concur that my preponderance of the evidence the BM3 A_ (Applicant) did commit misconduct by drug abuse and should be separated with an other than honorable."

931104:  BUPERS directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse (use) and administratively reduce to E-3 effective upon separation.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 931104 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 his character is demonstrated by his outstanding and documented excellence award and quick promotion to Petty Officer third class. The Board agrees the Applicant has good evaluations throughout his tenure in the Navy, but his performance prior to the drug abuse doesn’t mitigate his use of illegal drugs. Drug abuse warranted processing for separation, normally under Other than Honorable conditions. The discharge was proper and equitable. Furthermore, there is no evidence the command was not fair and impartial during the Applicant’s separation proceedings. The proceedings were reviewed and found sufficient in law and fact on 930805. Relief denied.

Issue 2: The Applicant states the urinalysis conducted on 930615 was performed incorrectly and could not guarantee the integrity of its results. The Board reviewed all the pertinent facts and disagrees. There was insufficient evidence to support the Applicant’s allegations of impropriety. Relief on this basis is therefore denied.

T here 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, a positive employment record, documentation of community service, certification of non-involvement with civil authorities and credible evidence that the Applicant is living a drug free life style, are examples of verifiable documents that should be provided to receive consideration for relief, based on post-service conduct. At this time, the Applicant has not provided sufficient verifiable documentation of good character and conduct to mitigate his misconduct while on active duty. 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 additional documentation to support any claims of post-service accomplishments at that time. Representation at a personal appearance hearing is recommended but not required.



Pertinent Regulation/Law (at time of discharge)

 A . Navy Military Personnel Manual, (NAVPERS 15560C), Change 5/93, effective
05 Mar 93 until 21 Jul 94, 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

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