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NAVY | DRB | 2003_Navy | ND03-00210
Original file (ND03-00210.rtf) Auto-classification: Denied


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

ex-MT3, USN
Docket No. ND03-00210

Applicant’s Request
The application for discharge review, received 20021121, 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 list any representative on the DD Form 293. By separate correspondence dated Jan 23, 2003,
The applicant was informed that he was approaching the 15 year point for review by this Board and was encouraged to attend a personal appearance hearing in the Washington, D.C. area. The Applicant did not respond.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20031010. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, no impropriety or inequity in the characterization of the Applicant’s service was discovered by the NDRB. 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, as stated

1. “The manufacturer’s of the EMIT and the EMIT DAU and the “radioman” assay (RIA) have indicated that these tests will test positive for marijuana when the urinalysis subject is currently taking Ibuprofen, like I was at the time. This is in my medical records. I was taking 800 mgs 4x per day at the time I tested positive. I had 12 years of clean urinalysis prior to this and after this positive test. I believe I was unfairly given a less than honorable discharge.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
None

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     19750708 – 19751102      COG
         Active: USN                        19751103 – 19791128      HON
         Active: USN                        19791129 – 19821028      HON

 Period of Service Under Review :
Date of Enlistment: 19821029             Date of Discharge: 19880808

 Length of Service (years, months, days):

         Active: 05 09 10
         Inactive: None

 Age at Entry: 26                          Years Contracted: 4 (43 months extension)

 Education Level: 12                        AFQT: 98

 Highest Rate: MT2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (6)    Behavior: 3.03 (6)                OTA: 3.20

 Military Decorations: None

 Unit/Campaign/Service Awards: NAVY”E”RIBBON (2), GCA (2), MUC

 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 :

821029:  Reenlisted on board USS SIMON LAKE (AS-33) for 4 years.
860219:  Applicant acknowledged Drug and Alcohol Abuse Statement of Understanding.

871013:  NAVDRUGLAB [GREAT LAKES, IL], reported Applicant’s urine sample, received 871005, tested positive for [THC].
880111:  NJP for violation of UCMJ, Article 112a: Wrongful use of marijuana, a controlled substance.
         Award: Forfeiture of $200.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-4. Appealed. Appealed denied 880114.
880113:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

880115:  DAAR indicates marijuana abuse as a result of a random urinalysis, found not dependent by medical officer, recommended for separation not via VA hospital.

880204:  Applicant advised of his rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
880421:  An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

880620:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse (use).

880703:  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 19880808 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 that he was unfairly given a less than Honorable discharge because he was taking 800 mg of ibuprofen 4 times daily and that ibuprofen will test positive for marijuana.

The Applicant’s record shows that his urine sample, provided to the NAVDRUGLAB, Great Lakes, tested positive for marijuana. Subsequently, the Applicant was notified of his rights and he elected to have an Administrative Separation Review Board. An Administrative Separation Review Board was convened and the Board voted unanimously that the Applicant had committed misconduct due to drug abuse and recommended separation with a discharge characterization of Other Than Honorable (OTH). The Applicant’s discharge was directed by CNMPC with a characterization of OTH. The discharge process was proper and equitable. Therefore, relief is denied.

 The following is provided for the benefit of the Applicant. Normally, to permit relief, an error or inequity must have occurred during the execution of the discharge for the period of enlistment in question. No errors or inequities were discovered during the execution of this discharge. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. However, 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 the civilian life subsequent to leaving the service. Outstanding post-service conduct, 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 can be considered. Examples of documentation to forward to the Board include proof of educational pursuits, verifiable employment record(s), documentation of community service, certification of non-involvement with civil authorities, and credible evidence of a substance free lifestyle (if appropriate). At this time, the applicant has not provided any documentation for the Board to consider. Therefore, relief will not be granted.


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


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