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Docket No. ND05-00929

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

FOR OFFICIAL USE ONLY

ex-AOAN, USN
Docket No. ND05-00929

Applicant’s Request

The application for discharge review was received on 20050510.  The Applicant requests the Discharge 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, D.C. Metropolitan area.  The Applicant designated civilian counsel as the representative on the DD Form 293.

Decision

A personal appearance discharge review was conducted in Washington, D.C. on 20060426.  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 in lieu of a trial by court-martial.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Issues submitted by Applicant and civilian counsel:

“I.  MR. D_(APPLICANT)’S ACCEPTANCE OF AN OTHER THAN HONORABLE DISCHARGE IN LIEU OF COURT MARTIAL WAS NOT MADE KNOWINGLY AND VOLUNTARILY, AND WAS MADE WITHOUT COMPETENT LEGAL COUNSEL

On April 24, 1991 Mr. D_(Applicant) was called into the office of Lt. G. F. G_, JAGC, USNR, an attorney that he had met with only once or twice before.  Lt. G_ showed Mr. D_(Applicant) a Request for Administrative Separation in Lieu of Court-Martial (Exhibit B) and stated the following:
“You better sign this or you will go to Leavenworth”
 “A court-martial will cost the government a lot of money, they will send you to Leavenworth for costing them money if you go to trial.”
“If you go to trial, it will be a long time before you see your family again.”
“An other than honorable discharge is not a bad discharge and will not affect you.”
“Don’t worry, your other than honorable discharge will automatically be upgraded to honorable after six months.” (Exhibit A).
Depressed over his wife’s affair, and pregnancy with another man, frightened by his attorney’s threats of prison, and being told basically that he had no other choice, Mr. D_(Applicant) signed the document for an other than honorable discharge.  The document was not read or explained to him first.  Mr. D_(Applicant) had no idea that he was admitting guilt to criminal offenses.  He had no idea that an other than honorable was a bad discharge.  He thought it would be upgraded automatically in six months.  He never read the document before signing it. (Exhibit B).
Mr. D_(Applicant) felt coerced into signing.  The coercion, depression and confusion can be seen in his “signature.” He signed only an “L” for his first name. (Exhibit B).  This is unlike his actual, regular signature which would include his entire name.
Mr. D_(Applicant) had no idea that he had admitted guilt by signing the document until he reviewed the Request for Administrative Discharge under Other than Honorable Conditions in Lieu of Trial by Court Martial on today’s date, 4/29/2005, in his attorney’s office.  He never would have signed this document had he known that he was admitting guilt. (Exhibit B).
Mr. D_(Applicant) did not enter into a knowing, voluntary and intelligent waiver of his rights when he signed for an other than honorable in lieu of court martial.  He was severely depressed, he always maintained his innocence, he was led to believe that the other than honorable discharge would be automatically upgraded in six months, and he was told that it was not a bad discharge.  More importantly, he was told that he had only two options: prison or an other than honorable discharge.  This was not a knowing and honorable waiver.
Mr. D_(Applicant) did not have effective assistance of counsel when he signed the request for administrative discharge. (Exhibit B).  Lt. G_ never explained to him that he had any viable options other than prison or an other than honorable discharge. (Exhibit B).  In fact, as will be explained below, the criminal charges against Mr. D_(Applicant) both were defensible, triable cases.
Lt. G_ never investigated the case, never interviewed any of the witnesses, despite the fact that Mr. D_(Applicant) told him that he was innocent, and never looked into the reliability of the drug tests despite the fact that Mr. D_(Applicant) told him repeatedly that he never smoked marijuana.
Lt. G_ never showed Mr. D_(Applicant) the Naval Investigative Report (Exhibit C), never showed him the charges against him (Exhibit D) and never showed him the drug analysis report (Exhibit E).  In fact, Lt. G_ never represented fighting the charges as a real option.  Rather, Lt. G_ told him it was the request for administrative separation or Leavenworth.
Lt. G_ made a material misrepresentation to Mr. D_(Applicant): that an other than honorable discharge was not a “bad” discharge and that it would be automatically upgraded to honorable within six months. (Exhibit A).
Lt. G_ coerced Mr. D_(Applicant) into signing the request for administrative separation when Mr. D_(Applicant) was vulnerable, scared and seriously depressed.  He signed the document without reading it or understanding it.  It was never explained to him.  All that was explained was:
A.  If Mr. D_(Applicant) went to trial he would go to Leavenworth; and
B.  The other than honorable discharge would be automatically upgraded to an honorable after six months.
Lt. G_ was not an effective advocate for Mr. D_(Applicant).  Rather, it appears that he did not want to be bothered with the work that would go into investigating and preparing for a trial.
Mr. D_(Applicant) was depressed and scared when he signed the Request for Administrative Separation in Lieu of Court Martial. (Exhibit B).  As our own federal court noted in Robinson v. Resor, 152 U.S. App. D.C. 204, 469 F.2d 944, 951 (D.C. Cir. 1972), the Marine Corps or the BCNR never “considered that a little more compassion, a little more interest in [plaintiff’s] welfare, could and should have prevented him “from executing a waiver resulting in “years of life under a stigma totally out of proportion to the totality of circumstances surrounding this case.”
A less than honorable discharge awarded in lieu of a court-martial “resembles plea bargaining but without the supervision and protection in the acceptance of pleas provided by a military judge under the UCMJ [Uniform Code of Military Justice].” Lunding, Judicial Review of Military Administrative Discharges, 83 Yale L. J. 33, 36 (1973). N3.
A waiver involving administrative rights in the service must be made intelligently and knowingly, or they are ineffective.  Krzeminski v. United States, 13 Cl. Ct. 430 (1987).  In Krzeminski, plaintiff serviceman signed a waiver of an administrative discharge review board.  In ruling the waiver to be ineffective, and therefore not an estoppel to further administrative proceedings, the Court of Claims found that the waiver form was placed in front of the claimant after he was released from a psychiatric hospital, and he was told to sign it.  His Navy Jag attorney told him that military administrative discharge boards convened at the command did not render fair judgments.  The Court of Claims found this advice to be erroneous, and therefore that the service member did not execute an intelligent waiver of his right to an administrative discharge board.
In Metz vs. United States, 61 Fed.  Cl.  154, 2004, the Court of Claims found a service member’s separation from the service based upon an administrative discharge in lieu of court-martial to be improper and invalid for two reasons:
First, the serviceman had not been adequately represented by counsel, military and civilian, both because the actual adverse consequences of the separation in lieu of court-martial were not explained to him and because he was told that if he went to trial he would be convicted.  Second, no defense to the positive urine sample was ever pursued even though, like here, the service member asserted his innocence and there were some aspects of the urinalysis that could be attacked.  Nor were any defenses explained to him.  The Court denied the government’s motion for summary judgment, granted the plaintiff’s cross-motion for judgment in part, and remanded the matter to the Secretary of the Air Force for determination of certain facts related to remedy.
Metz is directly on point to this case and should be followed as precedent in upgrading Mr. Daniel’s discharge.  The NDRB should not be a mere rubber stamp.  “The [Navy] needs a Board that serves the interest of justice.” Guerrero v.  Stone, 970 F.2d 626, 638-39 (9^th Cir.  1992).  See Swann V. Garrett, 811 F. Supp. 1336 (N.D. Ind. 1992) (correction board acts in violation of mandate to correct an error or remove an injustice and thus arbitrarily or capriciously if it does not correct blatant injustice in the record).  Although these cases reference the Board for Correction of Naval Records, they are equally applicable to the Naval Discharge Review Board which has a mandate to correct any error or injustice.

II.  THE DRUG TESTING PROCEDURES IN EFFECT AT THE TIME THAT MR. D_(APPLICANT) WAS TESTED WERE UNRELIABLE

Prior to the positive drug test on March 19, 1991, Mr. D_(Applicant) had taken at least 10-15 drug tests which had always been negative.
Standard procedure called for a log book to be put out for signature when urine samples were taken.  When the sample came back, the signature and social security number on the sample would be matched up with the signature and social security number on the log book.  On the date that Mr. D_(Applicant) gave the urine sample, there was no log book set out for him to sign as was standard operating procedure. (Exhibit A).
Moreover, Exhibit E, the actual Report of Urine Sample Tests, clearly states that there are “discrepancies...noted in the submitting procedures: Incorrect Entry in Block 1 and 2 on OPNAV Form 5355/2.  Refer to message address directory.”
The literature on urine drug testing accuracy points over and over again that drug testing is accurate and reliable only when all aspects of the testing process are done properly.  Even today, the majority of drug testing is “...poorly done and plagued with unreliable information...There are three aspects to reliable drug testing:
1.   Strict collection procedures;
2.   Proper testing Procedures;
3.   Random notification.” Informational Article, Drug Detection Laboratories, Inc., Exhibit F
In other words, the tests themselves are not the only indicators of accuracy in drug testing.  The collection procedures must be properly done as well.
In September 1, 1994 the Department of Health and Human Services, Substance and Mental Health Services Administration enacted Mandatory Guidelines for Federal Workplace Drug Testing Programs. (Exhibit G). The based purpose of the Mandatory Guidelines was to establish scientific and technical guidelines for Federal agencies’ (and the United States Armed Services’) Workplace drug testing programs and to establish a certification program for laboratories engaged in urine drug testing for Federal agencies.
These mandatory guidelines ensuring accuracy of drug testing, collecting, and the laboratories hired to do the testing were not in effect in 1991 when Mr. D_(Applicant) was tested, and when collection protocol clearly was not followed.  Clearly, these mandatory guidelines were enacted to combat inaccuracy in the testing process.
It is suspicious, also, that after passing 10-15 drug tests, Mr. D_(Applicant) tested positive for narcotics for the first time after being falsely accused of indecent assault, and that for the first time in his career, a log book was not set out for the urine test.
At the least, defense counsel should have looked into irregularities in the collection process when Mr. D_(Applicant) brought this to his attention.  As in Metz and Roberson, this was a defensible charge.  However, now, the sample has long since been destroyed and cannot be re-tested.  The ineffectiveness of Mr. Daniel’s counsel, however, remains.

III. THE CHARGES OF INDECENT ASSAULT ARE CLEARLY DEFENSIBLE

The charges of indecent assault were a classic “he said, she said” type of case that should have been investigated by defense counsel.  According to the Naval Investigative Report (Exhibit C) the complainant stated that Mr. D_(Applicant) kissed her on her forehead, and then later fondled her and kissed her.  However, there were no eyewitnesses to these alleged events.  It was her word against his.
Moreover, according to the report, “Subsequent interviews of Div 6 staff members, as well as crime scene examinations of compartment C3, the training assistant’s office and the MAA office, DIV 6, have been conducted, and no additional information or evidence has been developed.” i.e., they found no other evidence implicating Mr. D_(Applicant).
Finally, according to the report, after being advised of his rights, Mr. D_(Applicant) was interrogated and denied all culpability.
This case should have been investigated and fought.  Mr. D_(Applicant) was not guilty.  At a minimum the complaining witness and the friend that she related the story to should have been interviewed.  Again, as in Metz, Mr. D_(Applicant) did not have effective assistance of counsel.  In fact, this case is so like the case of Metz, that the opinion in Metz attached as Exhibit H.
WHEREFORE, it is respectfully requested that L_ D_(Applicant)’s discharge be upgraded from other than honorable to Honorable.

Respectfully Submitted,
J_ C_ N_ (counsel’s name)
Counsel for L_ D_(Applicant)”

Additional issue submitted by the Applicant’s counsel at the time of the personal appearance hearing: 

“The discharge is inequitable because Applicant has done well post service”

Documentation

In addition to the service and medical records, the following additional documentation, submitted by the Applicant, was considered:

Attorney’s brief, dtd May 5, 2005 (14 pages)
Declaration of Applicant, dtd April 29, 2005 (5 pages)
Nine (9) pages from Applicant’s service record
Seven (7) pages from www.drugdetection.net, printed May 4, 2005 
Fifty-one (51) pages from United States Department of Health and Human Services 	website, printed May 5, 2005 
61 Fed. Cl. 154; 2004 U.S. Claims Lexis 161, dtd June 30, 2004 (36 pages)
Cover letter from Applicant’s counsel, dtd March 26, 2005
Applicant’s DD Forms 214 (2 pages)
Letter from Applicant’s counsel, dtd October 27, 2005 (2 pages)
Copy of Applicant’s Bachelor of Science degree, dtd May 7, 2005 
Character Reference ltr from C_ S_ RN of Don, dtd June 2, 2005 (1 initial, not signed)
Character Reference ltr from D_ M_, V.P. of Organizational Solutions, dtd August 29, 	2001
Certificate of Appreciation from Lakeview Missionary Baptist Church for the year of 	2000 (not dated)
Character Reference ltr from L_ L. F_, Pastor, Lakeview Missionary Baptist Church, dtd 	February 27, 2000
Letter of community service from Durham Rescue Mission, dtd September 24, 2004
Honorable discharge certificate, dtd June 19, 1985
Human Resource Management, Mgt 4510, Bars Group Assignment, dtd November 30, 	2004 (13 pages)
Copy of front page of a Criminal record check, 1998 – June 1, 2005, dtd June 1, 2005 
Brochure for 72^nd Annual Meeting & Expo for North Carolina Dietetic Association, 	March 6-8, 2005 (2 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	19790305 - 19790724	COG
	Active:   USN	19790725 - 19850619	HON

Period of Service Under Review:

Date of Enlistment:  19850620		Date of Discharge:  19910510

Length of Service (years, months, days):

	Active:    05  10  21
	Inactive:  None

Time Lost During This Period (days):

	Unauthorized absence:  None
	Confinement:		  None

Age at Entry:  25

Years Contracted:  4 (28 month extension)

Education Level:  12				AFQT:  25

Highest Rate:  AO1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  3.5 (8)		Behavior:  3.6 (7)		OTA:  3.70

Decorations, Medals, Badges, Citations, and Campaign Ribbons Awarded or Authorized, (as listed on the DD Form 214):  Sea Service Deployment Ribbon, Sharpshooter, .38 Revolver Expert, .38 Cal Pistol, Overseas Deployment Ribbon, .38 Revolver Marksman, Second Good Conduct Award for the period ending 24Jul87, M-16 Marksman, National Defense Service Medal.

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

UNDER OTHER THAN HONORABLE CONDITIONS/separation in lieu of trial by court martial, authority:  MILPERSMAN, Article 3630650.

Chronological Listing of Significant Service Events: 

850620:	Reenlisted this date for a term of 4 years.

900508:	NJP for violation of UCMJ, Article 92: O/A 89Apr19 failure to obey order or regulation by having financial dealings with recruits.
Violation of UCMJ, Article 121: O/A 89Dec04 steal $483.00 the property of 15 drill team members.
Violation of UCMJ, Article 134: O/A 89Oct17 by soliciting and collecting unauthorized funds and by acting as an unauthorized agent for his drill team members.
	Award:  Oral reprimand, forfeiture of $500.00 per month for 1 month (forf suspended for 3 months).  No indication of appeal in the record.

910128:	U.S. Naval Investigative Service, Report of Investigation (Closed).

910312:	Charges preferred for violation of the Uniform Code of Military Justice (UCMJ) Article 92: In that Aviation Ordnanceman First Class L_ L. D_(Applicant), U.S. Navy, Recruit Training Command, Orlando, Florida, on active duty, did, at Division Six, Recruit Training Command, Orlando, on or about 9 November 1990, fail to obey a lawful general regulation, to wit: CNTECHTRAINST 1600.2E, paragraph 1(p), of enclosure (1), dated 19 April 1988, by wrongfully fraternizing with Seaman Recruit T_ P. T_, U.S. Navy, by asking her to go to a movie, kissing her, placing his hands on her buttocks and indicating that he wanted to have sexual intercourse with her. Violation of the UCMJ Article 134 (2 specs): Specification 1: In that Aviation Ordnanceman First Class L_ L. D_, U.S. Navy, Recruit Training Command, Orlando, Florida, on active duty, did, at Division Six, Recruit Training Command, Orlando, on or about 9 November 1990, commit an indecent assault upon Seaman Recruit T_ P. T_, U.S. Navy, a person not his wife, by kissing her on her forehead, with intent to gratify his sexual desires.  Specification 2: In that Aviation Ordnanceman First Class L_ L. D_(Applicant), U.S. Navy, Recruit Training Command, Orlando, Florida, on active duty, did, at Division Six, Recruit Training Command, Orlando, on or about 9 November 1990, commit an indecent assault upon Seaman Recruit T_ P. T_, U.S. Navy, a person not his wife, by fondling her buttocks and kissing her, with intent to gratify his sexual desires.

910312:	Charges for Violations of Uniform Code of Military Justice (UCMJ) Articles 92 and 134 are referred to special court-martial.

910325:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 910319, tested positive for THC.

910328:	Charges preferred for Violation of the Uniform Code of Military Justice (UCMJ) Article 112a: In that Aviation Ordnanceman First Class L_ L. D_(Applicant), U.S. Navy, Recruit Training Command, Orlando, Florida, on active duty, did, at an unknown location, from the periods of 12 February 1991 until 14 March 1991, wrongfully use of Schedule I controlled substance, to wit: marijuana.

910328:	Charges referred to special court-martial.

910424:	Medical Examination, Branch Medical Clinic, NTC Orlando, FL.  Medical Officer comments: “There is no reasonable cause to question whether this member could adhere to the law at the time of the alleged offense and is capable of understanding the nature of the proceedings against him/her.  It is therefore, the opinion of the examiner that an examination by a psychiatrist is not warranted as part of the evaluation processing.”

910424:	Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  He consulted with counsel and was fully advised of the implications of his request.  The Applicant stated that he was completely satisfied with the counsel that he received.  The Applicant requested to be administratively reduced to the paygrade of E-3.  The Applicant stated he understood the elements of the offense(s) with which he was charged, and admitted that he was guilty of a Violation of Article 92, Uniform Code of Military Justice: one specification of failing to obey a lawful general regulation; a Violation of Article 134, two specifications of committing an indecent assault and a Violation of Article 112a, Uniform Code of Military Justice: one specification of wrongfully use of 
a Schedule I controlled substance; Marijuana.   The Applicant understood that if discharged under other than honorable conditions, it might deprive him of virtually all veterans' benefits based upon his current enlistment, and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or the character of discharge received therefrom may have a bearing.   The Applicant acknowledged the statement that the request is voluntarily submitted, free from duress or promises of any kind.

910506:	The Commanding Officer, Naval Training Center, Orlando, exercising GCMCA, approved the request for an administrative separation in lieu of a trial by court-martial, and directed Applicant’s discharge.
021029:	NDRB documentary record review Docket Number ND02-00350 conducted.  Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19910510 in lieu of a trial by court-martial (A and B) with a service characterization of under other than honorable conditions.  After a thorough review of the Applicants testimony, records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).  

The Applicant contends that his acceptance of an other than honorable discharge in lieu of court martial was not made knowingly and voluntarily, and was made without competent legal counsel.  On 19910424 the Applicant requested an administrative discharge under other than honorable conditions in lieu of a trial by court-martial.  He consulted with counsel, was fully advised of the implications of his request, and he stated that he was completely satisfied with the counsel that he received.  Further, the Applicant stated that he understood the elements of the offenses with which he was charged, and admitted that he was guilty of Violations of UCMJ Articles 92, 112a, and 134.  The Applicant acknowledged that an under than honorable discharge might deprive him of virtually all veterans benefits based upon his current enlistment and that he might expect to encounter substantial prejudice in civilian life in situations wherein the type of service rendered or character of discharge received may have a bearing.  Finally, the Applicant’s request included the statement that his request was submitted voluntarily, free from duress or promises of any kind.  In his testimony, the Applicant stated that his counsel read the request for administrative separation to him and that he (the Applicant) signed the request.  On 19910506, the Commanding Officer, Naval Training Center Orlando approved the Applicant’s request.  The record contains no evidence of any wrongdoing by the Applicant’s counsel or anyone else for that matter in the discharge process.   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 impropriety 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 documentation of post-service accomplishments to include proof of continuing education, employment during 10 of the 15 years since his discharge, 20 hours of community service, and a partial criminal records check.  In his testimony, the Applicant did admit to an arrest occurring shortly after his discharge.  While the Board acknowledges the Applicant's post service accomplishments, the Applicant should have provided evidence of drug free existence and a complete criminal records check   At this time, the Applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in the characterization of discharge.  Therefore, no relief will be granted.  

The following is provided for the edification of the Applicant.  The Applicant has exhausted his opportunities for review by the NDRB.  The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, concerning a change in the characterization of naval service, if he desires further review of his case.

Pertinent Regulation/Law (at time of discharge)

A.  Naval Military Personnel Manual, (NAVPERS 15560A), Change 7, effective 
25 May 89 until 14 Aug 91, Article 3630650, PROCEDURES FOR PROCESSING ENLISTED PERSONNEL FOR SEPARATION IN LIEU OF TRIAL BY COURT‑MARTIAL. 

B.  A punitive bad conduct discharge may be adjudged for violation of the Uniform Code of Military Justice, Article 92, failure to obey a lawful general regulation, Article 112a, wrongful use of a controlled substance, and Article 134, indecent acts with another, upon conviction by a Special or General Court-Martial, in accordance with the Manual for Courts-Martial].

C.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety.

D.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity.

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 “http://Boards.law.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:

		Secretary of the Navy Council of Review Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023