DEPARTMENT OF THE

NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

 

2 NAVY ANNEX

WASHINGTON DC 20370-5100

i

TRG
Docket No:
12 December 2001

571-00

This is in reference to your application for correction of your
naval record pursuant to the provisions of Title 10 of the United
States Code section 1552.

A three-member panel of the Board for Correction of Naval
Records, sitting in executive session, considered your
application on 4 December 2001.
injustice were reviewed in accordance with administrative
regulations and procedures applicable to the proceedings of this
Board.
Documentary material considered by the Board consisted of
your application, together with all material submitted in support
thereof, your naval record and applicable statutes, regulations
and policies.

Your allegations of error and

After careful and conscientious consideration of the entire
record, the Board found that the evidence submitted was
insufficient to establish the existence of probable material
error or injustice.

On 31 July and 17 September 1992 you received nonjudicial

(NJP) for disrespect, disobedience, making a false

You enlisted in the Navy on 8 January 1991 at age 19 for four
years.
punishment 
official statement and failure to go to restricted musters.
then served without incident for almost two years.
September you received NJP for use of LSD.
imposed included forfeiture of pay and a suspended reduction in
rate.

The punishment

On 1

You

You appealed the NJP contending that you were innocent of drug
abuse.
You believed that there was a chain of custody problem
with the urine sample or the drug laboratory must have made an
error.
(CO) addressed these issues as follows:

In his endorsement on your appeal, the  

commanding officer

. 

. 

. He states that he had a problems providing a

. 
sample so he left the urinalysis site and returned on a
number of occasions until he submitted a full sample.
Although the sample may not have been in his sight the
entire time, it was under the control of the urinalysis
coordinator which is well with the OPNAV urinalysis

If he had any concern over custody of his
guidelines.
sample, he should have provided a new complete sample.
Although precautionary,
OPNAVINST.

this is not necessary under the

. 

The relevancy of this point is

. Next (he) states that the threshold level is 200
. 
micrograms and one dose of LSD would be approximately
160 micrograms.
questionable but upon my further investigation the
Naval Drug Laboratory reported that the actual
threshold for LSD is 200 peakograms.
that LSD has a distinct  
other substance, thus making it impossible to be
mistaken with any other substance.
sample is tested three separate times with (his)
reporting the same positive result each time.

They also stated
print" which is like no

In addition, each

"finger 

. 

. Finally, whether the urinalysis test itself is 100%
onboard has the

. 
scientifically accurate or not, no one  
definite answer.
testing holds up in military and civil courts . . .

What I do know is that the

. . . . 

 

.

. 

. The bottom line is that (he) provided a sample,

. 
attested that it was indeed his sample, and that sample
came back positive for LSD.
urinalysis procedures or the chain of custody.

There was no breech of the

. . . .

On 15 September 1994, the Commander,
denied the NJP appeal concluding that the testing procedure in
your case was adequate and reliable,
the evidence showed that you had use LSD.

Combat Logistics Group TWO

and that a preponderance of

On 16 September 1994 you were notified of separation processing
by reason of misconduct due to drug abuse, commission of a
serious offense, and a pattern of misconduct.
An administrative
discharge board (ADB) convened on 9 December 1994.
During the
ADB several individuals testified concerning the handling of your
urine sample.
The urinalysis coordinator testified, in part, as
follows:

(his) sample being taken. It
initialling (sic) went.
The
It was
the whole time it was in the

. . . I vaguely remember
was incomplete when he
sample was then locked in the refrigerator.
sitting on his ID card
refrigerator.
I did not touch his sample while it was
kept in my possession.
No one else has access to that
refrigerator at that time until the urinalysis testing
is complete.
date, the batch number, specimen number, . . . and his
social security number.
ID card.

It was sitting on top of his
There is no chance that it would be sitting

We had a label on his bottle.

It had the

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The bottle
in the refrigerator without his ID card.
Nobody
not sealed until a full sample is provided.
else has access to that refrigerator . . . . If someone
only provided a partial sample and he came back to
finish providing the sample,
bottle out of the refrigerator.
refrigerator, one the door and have him retrieve his
sample from on top of his ID card.

the member would get the

I unlock the

is

In response to questions from the ADB members, the coordinator
testified as follows:

. 

. 

.. 

. 
but while 

The.refrigerator  is locked when I leave the lab,

I'm sitting in there it is left open.

The refrigerator is physically located to the right of
the desk. I am able to absolutely watch the evolution
of the person who takes the bottle and places it in the
refrigerator . . . .
refrigerator first, the other individual who was unable
to provide a full sample placed the bottle in the
refrigerator after him.
I don't recall if it was
locked in between the two samples being put in.

(He) placed his sample in the

I only recall those 2 samples that were in there
together.
refrigerator.

There was no one else that entered the

The executive officer of the drug screening laboratory, who was
also a staff chemist, testified extensively about LSD, drug
testing in general, testing for LSD in particular, and the
maintenance of the chain of custody within the drug laboratory.
He believed that the sample at issue was processed correctly and
the report of a positive results for LSD was correct.

Subsequently, your roommate and former girlfriend, who had become
your wife, testified that they were with you most of the time
before the urinalysis and that they never saw you use or act like
you had used LSD.
stated that you had not used LSD.
You concluded your testimony
stating that you would not have used LSD because you were looking
forward to getting married and your early discharge had been
approved so that you could go to college.

You testified about your past record and

The ADB unanimously concluded that you had committed misconduct
due to drug abuse, a pattern of misconduct,
serious offense; and recommended discharge under other than
honorable conditions.
After review, the discharge authority
directed discharge under other than honorable conditions due to a
pattern of misconduct.
You were so discharged on 6 January 1995.

and commission of a

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essentially raising the same
You also contend that

Directive (DODDIR) 1010.4 and 32 C.F.R.

In your application you contend that the urine collection process
did not comply with the regulations,
issues used in the NJP appeal and the ADB.
even if is conceded that you used LSD, the Navy violated
Department of Defense
Section 62.4 which required treatment and rehabilitation of drug
abusers.
"zero tolerance" drug policy and mandatory discharge processing
was in conflict with the requirements of 32 C.F.R. Section 62.4,
and you have been denied due process of law, because neither the
separation authority or the ADB considered your rehabilitation
potential.
regulations because you were never evaluated immediately after
the drug abuse was discovered as required by enclosure (7) to
OPNAVIST 

You argue that the Navy's directives that created a

Finally, you argue that the Navy violated its

5350.4B.

The Board was aware that under the terms of the then existing
version of DODDIR 1010.4, the armed forces had a responsibility
to treat and counsel drug abusers and rehabilitate, for the
purposes of retention, the maximum feasible number of those
The question, then, is whether your rehabilitation was
abusers.
The Board believed that it was not feasible in your
feasible.
The Board
case because you have never admitted to using LSD.
believed that an individual cannot be rehabilitated unless he or
she admits to drug use and expresses a desire to overcome the
problem.
meaning of the pertinent provisions of DODDIR 1010.4.
Accordingly, the Board concluded that it was proper to process
you for separation due to drug abuse.

Only then is rehabilitation "feasible" within the

5350.4B.

The Board also noted your contention that corrective action
should be taken in your case because no drug evaluation was
accomplished as required by enclosure (7) to OPNAVINST  
Appendix A to that enclosure indicates that such an evaluation
should be accomplished immediate after the individual is deemed
to be a drug abuser, and before any disciplinary or
administrative action.
5350.4B,  in September 1990,
be a
whether separation processing or retention was appropriate in a
given case.
18/92 obviated the need for
Administrative Message  
such guidance since it mandated separation processing for all
drug abusers.
to decide whether to process you for separation, there was no
need for an evaluation prior to such action.

map" for the commanding officer's use in deciding

However, the February 1992 issuance of Navy

When it was issued with OPNAVINST

The Board concluded that since the CO did not have

(NA.VADMIN)  

"road 

the appendix was clearly designed to

The Board believed that the urinalysis was conducted in
accordance with regulations and was sufficient to support the NJP
However, you were actually discharged
and discharge processing.
by reason of misconduct due to a pattern of misconduct. A record

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of three nonjudicial punishments is sufficient to  support
discharge processing for that reason.
concluded that the discharge was proper as issued and no change
is warranted.

Therefore, the Board

Accordingly, your application has been denied.
votes of the members of the panel will be furnished upon request.

The names and

It is regretted that the circumstances of your case are such that
favorable action cannot be taken.
You are entitled to have the
Board reconsider its decision upon submission of new and material
evidence or other matter not previously considered by the Board.
In this regard, it is important to keep in mind that a
presumption of regularity attaches to all official records.
Consequently, when applying for a correction of an official naval
record, the burden is on the applicant to demonstrate the
existence of probable material error or injustice.

Sincerely,

W. DEAN PFEIFFER
Executive Director

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