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




CRUZ, Charles A., 120-62-9242, ex-SMSN, USN
Docket No. ND04-00721

Applicant’s Request

The application for discharge review was received on 20040330. The Applicant requests the characterization of service received at the time of discharge be changed to honorable or general (under honorable conditions). The Applicant requests a documentary record review. The Applicant listed the Department of Veterans Affairs, Carbon County, PA, as the representative on the DD Form 293.

Decision

A documentary review was conducted in Washington, D.C. on 20041103. 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, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

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PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

1. “I wish to have my discharge upgraded, I have been an outstanding citizen my discharge from U.S. Navy.”

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Letter of reference from Carbon County Sheriff’s Office, dated March 17, 2004
Letter of reference, dated March 21, 2004
Letter of reference, dated March 20, 2004
Letter of reference, dated March 20, 2004
Applicant’s DD Form 214

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PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

         Inactive: USNR (DEP)     990119 - 990124  COG
         Active: USN                        990125 - 020411  HON

Period of Service Under Review :

Date of Enlistment: 020411               Date of Discharge: 030617

Length of Service (years, months, days):

         Active: 01 02 06
         Inactive: None

Age at Entry: 22                          Years Contracted: 6

Education Level: 12                        AFQT: 32

Highest Rate: SM3

Final Enlisted Performance Evaluation Averages (number of marks):

Performance: 3.00 (1)    Behavior: 3.00 (1)                OTA: 3.14

Military Decorations: None

Unit/Campaign/Service Awards: NER (2), NDSM, OSR (2), SSDR

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 :

020412:  Applicant reenlisted for 6 years.

030502:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 030423, tested positive for THC.

030509:  NJP for violation of UCMJ, Article 112A: Wrongfully use marijuana on 030422.
         Award: Forfeiture of $814 per month for 1 month, restriction and extra duty for 45 days, reduction to E-3. No indication of appeal in the record.

030509:  Applicant notified of intended recommendation for discharge with a least favorable characterization of under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to commission of a serious offense.

030509:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights.

030528:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse and misconduct due to commission of a serious offense.

030610:  Commander, Combat Logistics Squadron TWO directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

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PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030617 under other than honorable conditions for misconduct due to drug abuse (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: Normally, to permit relief, an impropriety or inequity must have occurred during the discharge process for the period of enlistment in question. The Board discovered no impropriety after a review of Applicant’s case. There exists 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 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.

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 naval service. The NDRB is authorized, however, to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the applicant’s performance and conduct during the period of service under review. Examples of documentation that should be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities. As of this time, the Applicant has not provided sufficient documentation of good character and conduct to mitigate his misconduct while on active duty. Relief denied.

Concerning a reenlistment in the Naval Service, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.

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 or any other evidence related to his discharge at that time. Representation at a personal appearance hearing is recommended but not required.
Pertinent Regulation/Law (at time of discharge)

A . The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 2002 until Present, 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.

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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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BOARD MEMBERS RECORD OF VOTE


NAME                       CHARACTER OF SERVICE     REASON FOR DISCHARGE

T. B. GALVIN, COL, USMC                    NO CHANGE                          NO CHANGE
Presiding Officer

A. KOLKMEYER, LTCOL, USMC                 NO CHANGE                          NO CHANGE
Member

M. CUNNINGHAM, LT, USNR           NO CHANGE                          NO CHANGE
Member

S. OSBORN, LT, USN                         NO CHANGE                          NO CHANGE
Member

J. L. KOSKY, LT, JAGC, USNR               NO CHANGE                          NO CHANGE
Recorder



Recorder’s Signature:_____________________________________________


Presiding Officer’s Signature:_______________________________________

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A. The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 02 until Present, Article 1910-146 (formerly 3630620), Separation by Reason of Misconduct - Drug Abuse, states:
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Responsible Office

NAVPERSCOM (PERS-832)

Phone: DSN COM FAX

882-4438 (901) 874-4438 882-2624

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Governing Directive

OPNAVINST 5350.4C

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1. Policy

a. Processing is mandatory for the following:

         (1) Positive urinalysis that was tested and confirmed positive at a Navy Drug Screening Lab (NAVDRUGLAB) or other DOD-approved lab. If the commanding officer determines that the urinalysis result was caused by administrative errors (e.g., faulty local chain of custody, evidence of tampering) or the drug use was not wrongful (e.g., prescribed medication, unknowing ingestion), then the member shall not be identified as a drug abuser and the positive urinalysis is not a drug abuse incident . When this determination is made the command shall notify, via official correspondence, Navy Personnel Command (PERS-6) and the command's immediate senior in command of the circumstances that warranted such a determination.

         (2) Admission of drug use.

         (3) One or more military drug related offense(s).

         (4) Nolo contendere, no contest plea in civil courts.

         (5) Civil conviction for a drug related offense(s).

         (6) Actions tantamount to findings of guilt in civil courts:

         (a) Deferred prosecution

         (b) Entry in pretrail intervention program

b. Drug related offenses include the following:

         (1) Drug Abuse - illegal or wrongful use, possession of controlled substances.

(2) Drug Paraphernalia - all equipment, products, and materials that are used, intended for use, or designed for use in injecting, inhaling, or otherwise introducing controlled substances into the human body in violation of law.

(3) Drug Trafficking - the sale, transfer, or possession with the intent to sell or transfer controlled substances.
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2. Procedures

a. Notification procedures are used for the following situations:

(1) Conviction/offense occurred in a prior enlistment or pre-service and processing for fraudulent enlistment is not appropriate.

(2) Member self-refers to a qualified self-referral representative with the intent of acquiring treatment and is found to be drug-dependent by proper medical authority.

(3) Processing is based on fitness for duty or certain service-directed urinalysis, per OPNAVINST 5350.4C (see following table).

(4) Voluntarily discloses evidence of prior personal drug abuse during course of treatment/rehab.

(5) Naval Reservists testing positive on accession test into the Reserve Program.

(6) Prior service Applicants for Selected Reserve enlistments/ reenlistments whose break in service from a Selected Reserve or Regular component is more than 6 months.

b. Other than the above exceptions, drug abuse must be processed using administrative board procedures (MILPERSMAN 1910-404) with Under Other Than Honorable (OTH) being the least favorable characterization of service considered. This applies to both Regular and Reserve personnel. (Example: Drilling reservists who test positive on urinalysis may be processed for OTH regardless of when the drugs were ingested.)

c. If member waives right to administrative board, under administrative board procedures, only General Court-Martial Convening Authority or higher serves as separation authority.
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3. Use of Urinalysis Results

a. Use this table to determine basis for separation and characterization of service.

NOTE: Only urinalysis results from a NAVDRUGLAB or other DOD-certified lab will be used to refer a military member for appropriate disciplinary action and to establish the basis for separation and characterization of discharge.

Type	Usable in Disciplinary Proceedings	Usable as basis for separation	Usable for OTH Char-acterization
Search or seizure •         Member's consent •         Probable cause	Yes Yes	Yes Yes	Yes Yes
Inspection •         Random sample •         Unit sweep	Yes Yes	Yes Yes	Yes Yes
Medical - general diagnostic purposes (e.g., ER treatment, annual physicals etc.) (See Rule 1)	Yes	Yes	Yes
Fitness for duty •         Command-directed •         Competence for duty •         Mishap/safety investigation	No No No	Yes Yes Yes	No No No
Service directed •         Treatment facility staff (military) •         Alcohol rehab testing •         Naval brigs •         Entrance testing •         Accession training pipeline	Yes No Yes No Yes	Yes Yes Yes Yes Yes	Yes No Yes No

Yes
a. Rules

(1) The medical facility should immediately notify the member's command of a positive urinalysis or blood test. This notification should prompt the commanding officer or acting commanding officer to authorize an immediate probable cause urinalysis conducted by the command's designated urinalysis coordinator. If the commanding officer or acting commanding officer will not be available in excess of 24 hours, then the command duty officer or officer of the day should authorized an immediate command directed urinalysis. Immediate action is necessary to preclude further degradation of possible controlled substances in the system due to the passage of time. An exception to this policy is if the member is unconscious and unable to knowingly provide a urine sample.
(2) Yes for reservists recalled to active duty only (except Delayed Entry Program participants).
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4. Characterization of Separation . MILPERSMAN 1910-300 provides information for characterization guidance. If the member has less than 180 days of service, an Entry Level Separation may be appropriate. See MILPERSMAN 1910-308.
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