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NAVY | DRB | 1999_Navy | ND99-00148
Original file (ND99-00148.rtf) Auto-classification: Denied


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

ex-LCDR, USNR
Docket No. ND99-00148

Applicant’s Request
The application for discharge review, received 981106, requested that the characterization of service on the discharge be changed to Honorable. The applicant requested a personal appearance hearing, but was advised on 9 November 1998 that he would first have a documentary record discharge review. The applicant did not designate a representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 991004. After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the applicant’s service. 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: SECNAVINST 1920.6A.


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues

 1 . The process used for collection of urinalysis samples on 3 August 1991 at N&MCRC Fort Schulyler New York was not conducted in a manner that would ensure that the sample I provided was in fact the sample that was tested by the government's lab.

2. No individual involved in the collection process of urinalysis samples on 3 August 1991 was made available to testify at the hearing in Philadelphia regarding the validity of the procedures used. Two witnesses, CDR D_ M_, XO of my reserve unit, and LCDR C_ H_l, a member of my unit, testified on my behalf that the collection processes used at N&MCRC on two separate occasions were flawed.

3. I was unable to have the sample, which was alleged to be mine, retested at an independent lab, S_ K_ B_, due to mishandling. No testing as to whether the sample was in fact mine or whether the label was the original label that I had initialed were able to be conducted.

4. The results of the Tri-Annual Inspection of N&MCRC Fort Schuyler conducted in the first quarter of 1992 confirmed that the staff operating the center could not adhere to standard processes. The center received "unsatisfactory" ratings in all but one category.

5. Commander W_ B_, the TAR officer who was assigned by the CO of N&MCRC to oversee the paperwork for my case, informed me that he personally believed that I was innocent of the charges made against me based on his review of the evidence and his experience working at N&MCRC Fort Schuyler. He further stated that the command was intent on upholding the validity of their urinalysis collection process, irregardless of the truth.

6. My service record clearly shows that I served honorably for all fifteen years of dedicated service. I was proud to be a Naval Officer. My record of accomplishments provides a clear picture of my character and honor. I was making significant contributions to my unit in the Spring and Summer of 1991. I had just completed a successful two weeks annual reserve duty in July of 1991. 1 was notified of my selection as a Commander USNR, SC in September of 1991. The accusation of "substandard performance of duty" was not and could never be substantiated.

7. Dr. S_ N_ of the Navy Drug Screening Laboratory (NDSL) admitted during testimony that the lab had no way of knowing if the samples that they received actually belonged to the individual whose social security number appeared on the bottle. He further added that if the chain of custody procedures were not followed by the local command, the results of any subsequent analysis would have very limited value.

8. I had participated in random screenings upon arrival at Fort Schuyler in February of 1991 as well as in May 1991 with my employer at the time, General Electric Company. The results of these and all other screenings I have ever participated in before 3 August 1991 and since have been negative. My offer to submit a new sample for analysis when I was informed of the results of the 3 August 1991 analysis vas denied.
Documentation
In addition to the service record, the following additional documentation, submitted by the applicant, was considered:
Applicant's letter to the Board dated 2 Nov 1998

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Active: USNR (OCSA)      770108 - 770519  Commissioned
         Inactive: USNR            761213 - 770107  To attend officer training

 Period of Service Under Review :
Date of Commission: 770520               Date of Discharge: 931029

 Length of Service (years, months, days):

         Active: 08 09 09
         Inactive: 07 03 18

 Age at Entry: 22                          Years Contracted: 6

 Education Level: 16 (BS/BA)      AFQT: N/A

 Highest Grade: LCDR

 Final Officer Performance Evaluation Averages : All officer performance reports were available to the Board for review.

 Military Decorations: None

 Unit/Campaign/Service Awards: NAM, SSDR,

Days of Unauthorized Absence: None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: SECNAVINST 1920.6A.

 Chronological Listing of Significant Service Events :

770520:  Commissioned in the Naval Reserve as an Ensign.

800601:  Augmented to the Regular Navy.

850620:  Submitted letter of resignation based on personal reason, job satisfaction, etc.
850910:  NAVMILPERSCOM advised that Secretary Navy accepted his resignation and separation orders would be issued.

851108:  CHNAVPERS issued separation order to be effective not later than 28 Feb 86.

860816:  Requested transfer to the Ready Reserve and assigned to drilling unit (Naval Reserve Readiness Command, Newport, R.I.).

870330:  Applicant ordered to report to Commander Military Sealift Command, Washington, D.C., on 4MAY87, for 12 days annual active duty training.

881216:  Request for transfer to the Ready Reserve approved and assigned to drilling unit (Naval Reserve Center Binghamton, NY).

890131:  At applicant's request, transferred from Naval Reserve Readiness Command, Newport, R.I. and records forward to Naval Reserve Personnel Center, New Orleans, LA. Applicant indicated that he would reaffiliate with unit in Binghamton, NY, at a later date.

900109:  Applicant ordered to report to Commander Military Sealift Command, Mediterranean Sub Area, on 11FEB90, for 17 days annual active duty training.

910730:  Applicant ordered to report to Commanding Officer, Navy Ships Parts Control Center, Mechanicsburg, PA, for 12 days annual active duty training.

910906:  NAVDRUGLAB Norfolk, VA: Positive for marijuana, urinalysis on 08AUG91, received by lab on 28AUG91.

910927:  DAAR: Random urinalysis on 08AUG91, positive for marijuana, determined by medical officer - not dependent, recommend separation from service not via VA hospital.
920430:  Applicant notified by CHNAVPERS of intended recommendation for discharge under Other Than Honorable conditions by reason of Commission of a Serious military or civilian offenses, which if prosecuted under the UCMJ, could be punished by confinement of six months or more; specifically you violated the UCMJ, Article 112a, wrongful use of a controlled substance, as evidenced by your positive urinalysis on a random screening on 8 August 1991; a commission of a military offense which if prosecuted under the UCMJ, could be punished by confinement of six months of more; specifically you violated the UCMJ, Article 133, conduct unbecoming an officer, as evidenced by your positive urinalysis on a random screening on 8 August 1991; and substandard performance of duty.
920715:  The Board of Inquiry (BOI), based upon a preponderance of the evidence and by unanimous vote, found that the applicant had committed misconduct by conviction by civilian authorities, or action taken which is tantamount to the finding of guilty which if service connected would amount to an offense under the Uniform Code of Military Justice as evidenced by positive urinalysis on a random screening; failed to conform to prescribed standards of military deportment as evidenced by positive urinalysis on a random screen; and has filed to show cause for retention in the Naval Service and recommend discharge under Other Than Honorable conditions.

930622:  CHNAVPERS recommended to the Secretary of the Navy (SECNAV) that applicant be discharged under Other Than Honorable conditions by reason of Misconduct due to Drug abuse (Use).

931029:  SECNAV directed the applicant's discharge under Other Than Honorable conditions by reason of Misconduct due to Drug abuse (Use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The applicant was discharged on 931029 under Other Than Honorable conditions for Misconduct due to Drug abuse (Use) (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).

In the applicant’s issue 1, 2, 3 and 4, the Board found these issues to be without merit. The applicant has not provided any documentation to support his allegations that his urine sample was miss handled or that N&MCRC’s collection process was flawed. Relief denied.

In the applicant’s issue 5, the Board found this issue to be without merit. The applicant did not provide any documentation to support the statements, he alleges were made on his behalf, by the TAR officer assigned to oversee the administrative matters of the applicant’s case. Relief denied.

In the applicant’s issue 6, the Board found this issue to be without merit. The quality of service the applicant provided, prior to the charges of drug abuse made against him, is not in question. Additionally, violating the UCMJ does not constitute honorable service. Relief denied.

In the applicant’s issue 7, the Board found this issue to be without merit. The drug testing lab is responsible for testing samples for illegal drugs not matching names to social security numbers. The applicant did not provide any documentation to show the urine sample he provided was miss handled.

In the applicant’s issue 8, the Board found this issue to be without merit. The urine sample labeled batch number 0527, specimen number 08, SSN# 019447211, lab accession number 653275, received by NAVDRUGLAB on 28AUG91 is the only one of concern in this case. Relief denied.

 Pertinent Regulation/Law (at time of discharge)

 A . The Secretary of the Navy Instruction 1920.6A of 21 November 1983 (Administrative separation of Officers), establishes policies, standards and procedures for the administrative separation of Navy and Marine Corps officers from the naval service in accordance with Title 10, United States Code and DoD Directive 1332.30 of 15 October 1981.

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 obtain a copy of DoD Directive 1332.28 by writing to:
                  DA Military Review Boards Agency
                  Management Information and Support Directorate
                  Armed Forces Reading Room
                  Washington, D.C. 20310-1809

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
                  Washington Navy Yard
                  720 Kennon Street SE Rm 309
                  Washington, D.C. 20374-5023     

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