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NAVY | DRB | 2004_Navy | ND04-00015
Original file (ND04-00015.rtf) Auto-classification: Denied


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

ex-SHSA, USN
Docket No. ND04-00015

Applicant’s Request
The application for discharge review was received on 20031001. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a documentary record discharge review. The Applicant did not list any representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040712. 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/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated
Applicant’s issues, as stated on the application:

1. “ I have spent over eight years serving over country. I was planning on retiring from the military and a error occurred in the drug screening process. I was flabbergasted when I was told that I was being discharged for testing positive for THC. The only problem was I have never tried drugs of any sort ever during my naval career or any other time for that matter. I received a false positive on a drug screening because I was consuming hemp products at the time I would have never taken hemp products if I had known it would cost me my naval career. I stopped taking hemp products immediately after being discharged from the navy. If I had known the repercussions of taking hemp products I would still be in the Navy to this day. Please consider upgrading my discharge to an honorable discharge because of the evidence presented. ”


2. “ I have attached two drug screening results both were negative. The first drug screening I had done was three days after I got the results back from the navy. The civilian drug screening I paided for out of my own pocket. I had the results faxed to the ship where I presented evidence in front of the XO. The results were negative, I asked for another urine specimen be taken from me, but my request was denied. I refused the punishment of 45 days restriction and extra duty. In doing this I lost all right to a board and was transferred off the ship to TPU NAS JAX where I was processed out. While checking in to TPU JAX I took a drug urine test at least six days after I received a false positive on my ship. It also came back negative. Since being out of the Navy I have been volunteering at Second Harvest Food Bank going to school full time. ”

Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Laboratory Corporation of America (drug test results) (2 pages)
Applicants Administrative message
Copy of DD Form 214 (Member 1)
Applicant’s Honorable Discharge, date October 26, 1999.
Character Letter, Second Harvest Food Bank, undated
Certificate of appreciation, J_ W_, dated July 4 th 2000

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     900423 - 900910  COG
         Active: USNR              900911 - 940910  RAD Transferred to USNR
                  USN                       940911 – 990422  HON

 Period of Service Under Review :
Date of Enlistment: 991027               Date of Discharge: 021231

 Length of Service (years, months, days):

         Active: 03 02 05
         Inactive: None

 Age at Entry: 29                          Years Contracted: 4

Education Level: 12                        AFQT: 37

 Highest Rate: SH3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.40 (5)    Behavior: 3.48 (5)                OTA: 3.52

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM (2), NER (2), SASM (2), BS, SSD (4), AFEM (2)

 Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/PATTERN OF MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-140 (formerly 3630600).

 Chronological Listing of Significant Service Events :

020328:  Retention Warning: Advised of deficiency (simple assault), notified of corrective actions and assistance available, advised of consequences of further deficiencies, and issued discharge warning.

020328:  NJP for violation of UCMJ, Article 128: Simple assault.
         Award: Forfeiture of $500 per month for 1 month, restriction and extra duty for 30 days, reduction to SHSN.(suspended for 6 months) No indication of appeal in the record.

020411:  Counseling: Advised of deficiency (leaving the ship’s store unsecured), notified of corrective actions and assistance available.
020723:  Vacate reduction to SHSN awarded at Commanding Officer’s NJP dated 020328 due to continued misconduct.
021217:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance, to wit: marijuana.
         Award: Forfeiture of $657.00 per month for 2 months, restriction and extra duty for 45 days, reduction to SHSA. No indication of appeal in the record.
021219:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct and misconduct due to drug abuse.
021219:  Applicant advised of 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 and submit a statement.
UNDATED:         Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to a pattern of misconduct. Commanding Officer’s comments: SHSA C_ (Applicant) was taken to CO’s NJP on 28 March 2002 for a simple assault. Afterwards, he was issued a Page 13 counseling and warning. On 021209, a positive urinalysis message received and SHSA C_ (Applicant) was taken to CO’s NJP for wrongful use of marijuana. Based on the drug abuse and the pattern of misconduct, I recommend SHSA C_ (Applicant) be separated from the naval service with an other than honorable discharge.

021230:  CNPC directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to a pattern of misconduct.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20021231 under other than honorable conditions for misconduct due to a pattern of misconduct (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 1-2. There is credible evidence in the record that the Applicant used illegal drugs. Mandatory processing for separation is required for sailors who abuse illegal drugs. Separation under these conditions generally results in characterization of service under other than honorable conditions. The Applicant’s contentions, that he was “consuming hemp products” and submission of negative test results on subsequent urinalyses do not, in the Boards view, mitigate his positive urinalysis. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. Relief denied.

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. Normally, to permit relief, a procedural error or inequity must have been found to have existed during the period of enlistment in question. 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, is considered. The applicant provided one letter of certification of his volunteer efforts as documentation of his post-service. The applicant's efforts need to be more encompassing than those provided. For example, the applicant could have produced evidence of continuing educational pursuits, a verifiable employment record, more documentation of community service, certification of non-involvement with civil authorities and evidence of continued drug free existence, in order for consideration for clemency based on post-service conduct. At this time, the applicant has not provided sufficient documentation of good character and conduct. Therefore, no relief will be granted. He is encouraged to continue with his pursuits and is reminded that he is eligible for a personal appearance hearing provided the application is received within 15 years from the date of discharge. Relief denied.


Pertinent Regulation/Law (at time of discharge)

 A. Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 2002 until Present, Article 1910-140 (formerly 3630600), SEPARATION BY REASON OF MISCONDUCT - PATTERN OF MISCONDUCT.

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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