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NAVY | DRB | 2004_Navy | ND04-01007
Original file (ND04-01007.rtf) Auto-classification: Denied


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

ex-MMFA, USN
Docket No. ND04-01007

Applicant’s Request
The application for discharge review was received on 20040607. The Applicant requests the characterization of service received at the time of discharge be changed to honorable. The Applicant requests a personal appearance hearing before the board in the Washington National Capital Region. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing. The Applicant did not list any representative on the DD Form 293.
Decision

A documentary review was conducted in Washington, D.C. on 20041112. 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.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Applicant’s issues, as stated on the application:

 1. “My name is R_ L_ B_ (Applicant); I was in the United States Navy for almost three years. I enlisted and attended bootcamp in Great Lakes in September 2000. After I completed bootcamp I started on my term in the Navy. I gained the respect of my peers as well as the higher ranks as being a hard worker and always doing more than what was expected of me. Through my trails and tribulations I stuck with it and it became easier with time. My job was a machinist mate and fireman on board the U.S.S. Seattle. My Navy career went from a smooth second year to a real mess in one day.

I have worked since the age of fourteen starting at a tobacco warehouse during the summer. When I was sixteen I worked at the Diary Queen part time and continued to work at the warehouse during the summers. In 1998 I started working at Bojangles and stayed there until I graduated in June 1999 from J.H. Rose High School. After graduation I applied for a job with Grady White Boat and I worked there for about six months, the smell of resin was bad for my allergies so I applied at Greenville Utilities and started working there in January 2000 in the meter department. I strive to learn everything I could and always tried to do my best. I knew I would need to go to college in order to better myself. My grades were not that great when I was in high school and so I started looking at my options. I saw a commercial on television about the military and the fact they would pay for your college. After work one day I went into the Navy recruiters office and I signed up and joined the Navy.

I left for bootcamp in September 2000 leaving everything behind but opening another chapter in my life and hoping for the best outcome. Bootcamp past and I was going to school for my job as an engineer or a machinist mate studying boilers and steam propulsion. After A-school I was assigned to the U.S.S. Seattle stationed in Earl New Jersey. The ship was docked in the yards in Philadelphia being repaired.

Arriving on the ship with a queasy stomach and my nerves on edge my military life started. As time progressed I became accustomed to the military’s rules the work and the lifestyle of protecting our country. Time went by with no marks on my record and with the time served I began working my way up the ranks El, E2 and E3. The problems that I faced were difficult yet I was always looking forward never looking back. I spent two years and one month on board the U.S.S. Seattle.

I participated in one and a half-yard period and one six-month deployment in the Middle East. Homecoming from deployment in August 2000 was one of the biggest obstacles in my life. I felt like I could achieve anything and the honor I accepted as being part of the best military in the world, showed on my face everyday after my return. I realized two years had passed and I started thinking about the future whether I was going to re-enlist or was I going to leave the military. Christmas past and I could not have felt better about my life with expectations of going back to school to become a mechanical engineer if I decided to leave the Navy or staying in and going a different route, I just had to make my decision.

My Christmas leave expired December 26 and I reported back on time and ready to go back to work. I went back to work on the 26 th and expected the usual leave urinalysis when I returned. On January 15 th 2002 my dreams of completing my military contract and receiving an Honorable discharge or staying in the military came to a halt. On this day I was called down for an emergency at the Masters of Arms shack. MM1 W_ told me about 10:50 to report, I thought something may have happened to someone in my family. When I went to personnel and reported to QM3 N_ he told me I needed to have a seat I asked him what was wrong? He stated he needed to read me my rights. I was completely blown away, after a long discussion I let him read me my rights I still did not know what I was being accused of. He then told me I had popped on a urinalysis that I taken on December 26 th QM3 N_ told me I had 327 nanograms of cocaine in my system. I told him there was no way I was with my family over Christmas break and that I had never done cocaine before. If I thought I would pop on the drug test I could have left the ship like other people do. Master at Arms Chief P_ asked me did I do it I told him “No”. I saw a piece of paper with 327 and the number 59 and without explaining anything to me he said I could not have a lawyer when I asked for one he said it was nonjudicial punishment. At 12:20 QM2 and Chief P_ said I had Captains Mast at 13:00. I was in total shock of what just happened I did not know what to think or do. My dress blues were at the barracks and I had about twenty minutes to go to the barracks look my best and be back to the ship ready to stand in front of the Captain at 13:00. I went from oily coveralls without a shower to dress blues; MM1 W_ escorted me. Captain’s Mast was a big blur; I saw my honor and commitment along with everything I worked so hard for presented in front of the senior enlisted along with the officers of the ship. The Captain asked me if I was aware of my rights not really understanding I said yes’. He asked me did I do cocaine I told him “no” the only thing I had ever done was stick my tongue to the bag just to see if it had a taste and being honest that was also the wrong answer as far as the Navy was concerned. Seconds after I said that I was trembling with embarrassment for my division and my family no more questions were asked the Captain gave me forty five days restriction, half a months pay times two and reduction in rank to El.

After Captains Mast on January 15 th while I was on restriction I pulled my head together, I stayed up for three days thinking of what just happened to me. I started asking questions about the urinalysis as well as observing certain things that just were not right. On January 29 th at 5:19 p.m. I found a bottle of something which looked like a urine sample on the closest table to the stairs in the berthing in which I slept in. I notified PC2 A_, which in turn notified Chief P_ who took the bottle with no name and no identification out of the room. He asked me if I knew where the bottle came from and was it my idea of a joke I said “no”. When I found the bottle out of place I knew I needed to write it down. On February 4 th 2003 at 9:49 am I spoke with Fireman Diaz he stated someone had put a urine sample under his pillow and he had put it on the table. I asked him what day did that happen he said it was less than a week ago. The bottles where abouts gave me more reason to ask questions. On February 19 th I talked with BM3 W_ and he told me the specimens taken from the people coming off of the first leave stayed on the ship for more than a week before being sent off. BM3 W_ was qualified to observe for the Navy, he also said that two days after the urine is taken it goes bad if it is not tested. BM3 W_ said that the urine is stored in the unsecured office of BM1 L_ on the barge, restricted personnel and duty personnel slept there. On February 19th 2003 IC1 P_ and I were talking about my case and he stated the restricted personnel -was doing-working for the Master o farms in BM1 L_'s office the day the urinalysis specimens were sitting in the office.

I was told my time to appeal my case was nine months and I have asked for the papers but I have not received anything in the mail. These events are documented in my journal and I am hoping for a change in the out come of my case. I received an “other than honorable discharge’ for this which I am having a hard time accepting. The money that I contributed toward my college was also taken away.

Currently I have been working for Manpower fulltime and also Wendy’s part time. Every time I go to fill out an application I have that devastating discharge hanging over my head. I would like to know how this happened. I do not have anything on my record and I should not have this discharge. If I had the chance to complete my contract I would. With all due respect Sir if there is anything you can do to help me change my discharge to a General discharge I would certainly be grateful.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Copy of Applicant’s DD Form 214
Copies of Applicant’s journal entries (9 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     000731 - 000914  COG
         Active:                            None

 Period of Service Under Review :
Date of Enlistment: 000915               Date of Discharge: 030425

 Length of Service (years, months, days):

         Active: 02 07 11
         Inactive: None

 Age at Entry: 19                          Years Contracted: 4

 Education Level: 12                        AFQT: 52

 Highest Rate: MMFN

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: NMF*                 Behavior: NMF             OTA: NMF

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR, NDSM, NER

 Days of Unauthorized Absence: None

*No marks found in record

 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 :

030110:  NAVDRUGLAB, Jacksonville FL, reported the Applicant’s urine sample, received on 030106, tested positive for cocaine.
030115:  NJP for violation of UCMJ, Article 112a: Wrongful use of a controlled substance.
Award: Forfeiture of $675.00 pay per month for 2 months, restriction and extra duty for 45 days, reduction to E-2. No indication of appeal in the record.
030221:  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.
030221:  Applicant advised of rights and having elected not to consult with counsel certified under UCMJ Article 27(b), elected to waive all rights.
030329:  Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.

030421:  Commander, Combat Logistics Squadron TWO directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030425 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 existed during the period of enlistment in question. No such impropriety or inequity is evident during the Applicant’s enlistment. The Applicant contends he never used illegal drugs. Despite his contentions, there is credible evidence in the record that the Applicant used illegal drugs. The Applicant’s urine sample collected on 030106 tested positive for cocaine or its metabolite above the administrative cut-off established by the Department of Defense. Nothing in the record suggests any irregularities in the collection, processing or testing of Applicant’s urine sample that would call into question the reliability of the positive result. The government enjoys a presumption of regularity in the conduct of its affairs. The Applicant bears the burden of rebutting this presumption through the presentation of credible and substantial evidence in support of his contentions. The Applicant’s declarations of his innocence and purported journal entries are not of the quality of evidence needed to meet the burden of proof required to overcome the government’s presumption of regularity. In order to receive relief, the Applicant must buttress his claims with credible and substantial evidence. Relief denied.

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 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 any documentation for the Board to consider. Relief denied.

The Veterans Administration determines eligibility for post-service benefits not the Navy Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge.

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 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.

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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