Title: DEPARTMENT OF THE NAVY
Author: CAP
Last saved by: janet.goode
Company: NCPB

Docket No. ND09-00146

ex-EM3, USN

Current Discharge and Applicant’s Request

Application Received:  20081028
Characterization of Service Received:  UNDER OTHER THAN HONORABLE CONDITIONS
Narrative Reason for Discharge:  (DRUG ABUSE)
Authority for Discharge:  MILPERSMAN 

Applicant’s Request:  Characterization change to:  
		       Narrative Reason change to:  

Summary of Service

Prior Service:
Inactive: USNR (DEP)	20010817 - 20020121  	Active:	

Period of Service Under Review:
Date of Enlistment:  20020122	Age at Enlistment:  
Period of Enlistment:   Years   Extension
Date of Discharge:  20070813	Highest Rank/Rate:  EM2
Length of Service:   Year(s)     Month(s)   12 Day(s)
Education Level:  	AFQT:  99
Evaluation Marks:	Performance:  5.0 (1)	Behavior:  5.0 (1)	OTA:  4.00

Awards and Decorations (per DD 214):	  (3)     

Periods of UA/CONF:   SCM:     SPCM:     CC:     Retention Warning Counseling:  

NJP:  
- 20070308:	Article 112a (Drug use, wrongful use of a controlled substance, cocaine)
	Awarded:      Suspended:  

Types of Documents Submitted/reviewed

Related to Military Service:	
                                         DD 214:  	 Service/Medical Record:  		  Other Records:  

Related to Post-Service Period:	
	Employment:			Finances:			Education/Training:	
	Health/Medical Records:		Substance Abuse:			Criminal Records:	
	Family/Personal Status:		Community Service:		References:		
              Additional Statements:
                             From Applicant:  	From Representation:         	From Congress member:    

                    Other Documentation:  

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

Applicant’s Issues

1.  No proof he knowingly used cocaine.
2.  Administrative Separation Board members made erroneous conclusions by unlawfully shifting the burden of proof.
3.  He was unreasonably denied a request to have his urine independently tested.

Decision

Date:  20090320		Location:  Washington D.C.	Representation:  

By a vote of  the Characterization shall  .
By a vote of  the Narrative Reason shall  MISCONDUCT (DRUG ABUSE).

Discussion

Issue 1:  ()  .  The Applicant contends he is entitled to an upgrade because there was no proof he knowingly used cocaine.  In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant.  The Applicant’s record of service was marred by one NJP for violation of the Uniform Code of Military Justice (UCMJ):  Article 112a (Drug use, wrongful use of a controlled substance, cocaine) as confirmed by a Naval Drug Lab testing facility.  The NDRB advises the Applicant certain serious offenses, warrant separation from the service in order to maintain proper order and discipline.  Violation of Article 112a is one such offense requiring mandatory separation regardless of time in service, grade or record of service.  Violations of this policy result in, at a minimum, mandatory processing for an administrative separation which usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial.  The command did not pursue a punitive discharge but instead opted for an administrative discharge.  

The Applicant provides no evidence or documentation the collection process or the Naval Drug Lab testing process was in error, the sample tested was not his nor does he explain how he had innocent ingestion of cocaine.  Documentation received by the Applicant’s civilian counsel states he attended a concert with fellow sailors on Monday, 13 November 2006; on Tuesday, 14 November 2006 his section was made subject of a continuing command urinalysis for drug testing.  His urine sample subsequently tested positive for cocaine and the command took administrative action to release him from military service due to drug use.  The Applicant was made subject of an NJP on 7 March 2007 and had an Administrative Separation Board (ASB) on 28 June 2007; the command then administratively separated the member with an “Under Other Than Honorable” conditions discharge shortly thereafter.  The Applicant was unable during any of these proceedings to convince either his CO or the ASB he either didn’t knowingly use cocaine or the lab test was in error.  The NDRB determined the awarded discharge was appropriate and an upgrade would be inappropriate.

Issue 2:  (Equity)  RELIEF NOT WARRANTED.  The Applicant claims the ASB members made erroneous conclusions by unlawfully shifting the burden of proof to the Applicant.  Per the letter from the Commanding Officer dated 30 July 2007, the Government had the burden of showing by a preponderance of the evidence the Applicant had committed misconduct.  Evidence submitted included affidavits from the ASB members and included testimony from the Urinalysis Coordinator, the Urinalysis Observer and the representative from the Naval Drug Laboratory in Jacksonville, Florida; all found to be credible.  Especially found credible was the testimony of Mr. S. that the Applicant could have taken cocaine on the Friday or Saturday preceding the urinalysis and still tested positive at the levels indicated in the drug test administered on 14 November 2006.  The ASB did not find credible the Applicant’s assertion he was at home in bed on both those nights (Saturday and Sunday), implying he therefore could not have used cocaine.  The command had positive laboratory confirmation the Applicant had ingested cocaine within days of the drug test and he could not explain nor convince anyone in the proceeding how that happened.  The NDRB determined the ASB did not unlawfully shift the burden of proof to the Applicant; the Applicant was simply unable to account for how his urine tested positive for an illegal substance in a manner which left no doubt with his

commanding officer or the ASB he was either innocent or an error had occurred.  The NDRB determined the awarded discharge was appropriate.   

:  ()  .   The Applicant contends he was unreasonably denied a request to have his urine retested.  The Navy has zero tolerance for drug abuse and conducts frequent random urinalysis testing to detect and deter drug abuse.  Anyone testing positive for a controlled substance is not entitled to a second urinalysis sample.  Per OPNAVINST 5350.4C, a commanding officer (CO) may obtain a retest of a specimen at a Navy Drug Laboratory (NAVDRUGLAB) upon request by a member if, in the judgment of the CO, the circumstances warrant additional testing.  A member may obtain a sample retest at a laboratory other than a NAVDRUGLAB at the member’s own expense when, in the opinion of the NAVDRUGLAB CO, a sufficient quantity of a specimen is available for retesting and the proposed laboratory meets DoD certification requirements.  The Director of Navy Alcohol and Drug Prevention stated there was no discrepancies in collection, transportation, or testing of the urine sample in question and as a result the CO determined additional testing was not warranted and denied the Applicant’s request.   Since the Applicant failed to provide any documentation or convincing evidence to the CO to warrant retesting of his original sample, it was determined the response from the CO and the lab was appropriate.  The NDRB determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service,   Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found   

Pertinent Regulation/Law

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 11, effective 29 April 2005 until Present, 
Article 1910-146, Separation by Reason of Misconduct - Drug Abuse.

B.  Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part II, Para 211, Regularity of Government Affairs, Part V, Para 502, Propriety and Para 503, Equity.

C.  The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 112a (Drug abuse).

ADDENDUM:  Information for the Applicant

Complaint Procedures:  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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC  20301-4000.  You should read Enclosure (5) of the Instruction 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 Instruction 1332.28 and other Decisional Documents by going online at “http://Boards.law.af.mil.”

Additional Reviews:  Subsequent to a document review, former members are eligible for a personal appearance hearing, provided the 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 additional evidence related to this discharge.  Representation at a personal appearance hearing is recommended but not required.  If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits:  The Veterans Administration determines eligibility for post-service benefits, not the Naval 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.

Employment/Educational Opportunities:  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 of the propriety and equity of the discharge.

Reenlistment/RE-code:  Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code.  Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes.  Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities.  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.

Medical Conditions and Misconduct:  DoD disability regulations do not preclude a disciplinary separation.  Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons.  Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended.  The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings.  If the action includes either a punitive or administrative discharge for misconduct or for any basis wherein an Other Than Honorable Discharge is authorized, the medical board report is filed in the member’s terminated health record.  Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons.  Only the Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - 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 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 may 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.

Issues Concerning Bad-Conduct Discharges (BCD) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief.  With respect to a discharge adjudged by a special court-martial, the action of the NDRB is restricted to upgrades based on clemency.  Clemency is an act of leniency that reduces the severity of the punishment imposed.  The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

Board Membership:  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

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Non-judicial punishment	SCM – Summary court-martial
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties
	CONF – Confinement		CC - Civilian conviction	B&W – Confinement on bread and water

Key:	NFIR - Not Found In Record 	UA – Unauthorized absence	NJP – Nonjudicial punishment	SCM – Summary court-martial	
	SPCM – Special court-martial	FOP – Forfeiture of pay	RIR – Reduction in rank	EPD – Extra Duties 
	CONF – Confinement		B&W – Confinement on bread and water