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NAVY | DRB | 2004_Navy | ND04-00010
Original file (ND04-00010.rtf) Auto-classification: Denied


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

ex-AT2, USNR-R
Docket No. ND04-00010

Applicant’s Request
The application for discharge review was received on 20030924. 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. The Applicant listed a Naval officer as her representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that military members do not normally represent an applicant before the board as it may be in violation of Title 18, USC, Section 205 and the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing. The Applicant did not respond regarding these two issues; case reviewed without counsel.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040712. 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 three to two that the character of the discharge and narrative reason shall not change. The discharge shall remain: GENERAL (UNDER 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. “I would like to board to view my case that the urineayalsis is not full proof. No test can be 100% accurate. I did the hair test within 90 days of the urine test. The hair test shows I did not do any drugs. I would not risk 18+ yrs of service take a urineayalsis (which I could have easily not taken that day) knowing I would test positive. I served my country with pride & diginity & had have all intentions of retiring with 20+ yrs of service. The documentation I have attached includes court cases where the hair test has been used to both convict (exernanate people in Federal courts. I am pleading with to look past only the “false” positive. Please look at the hair test. My untarnished record, letters of reference from both military & civilian peers, co-workers, prior Commanding Officers. I cry writing this. It is so wrong what has happended to me. I can’t explain the feelings I have after 18+ yrs, being respected (then in one day feeling so degraded. In the Reserves on drill weekends I trained active duty personnel both both junior, senior to my rank. I love & miss the Navy. I would proudly return to service to gain full retirement & defend my country. PLEASE HELP ME!!!

The enclosed material clearly support the hair. I have spent countless hours obtaining documentation for the hair test. I could have spent many more hours; the information and cases continually astest to the reliability (accuracy of the hair test. This is only a small fraction of supporting documentation.”
Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from Applicant, dated February 18, 2003
Letter from United States Senate, Constituent Representative, dated January 27, 2003
Letter from United States Senate, Constituent Representative, dated November 7, 2002 (2)
Letter to Senator B_ B_, dated November 19, 2002
Letter from Applicant, dated November 19, 2002
Letter from Applicant, dated November 13, 2002
Letter to Applicant from Board for Correction of Naval Records, dated September 10, 2002
Letter to Applicant from Board for Correction of Naval Records, dated April 27, 2001
Letter to United States Senator from Congressional Liaison Office, dated November 11, 2000
Applicant’s previous enlistment DD Form 214 (March 25, 1981 to February 25, 1985)
Applicant’s previous enlistment DD Form 214 (February 26, 1985 to February 25, 1989)
Letter to United States Senator from Director, Naval Council of Personnel Boards, dated February 25, 2003
Letter from United States Senate, Constituent Representative, dated April 15, 2003
Letter to Board for Correction of Naval Records, dated May 5, 2003
One hundred and eighty-eight pages from Applicant’s service record
E-mail to Applicant, dated May 25, 2001
E-mail to Applicant, dated August 27, 2001
Pages twenty-three to twenty-eight from The Sciences
Admissibility of hair analysis for drugs of abuse (4 pages)
Military Justice Reporter (8 pages)
The Army Lawyer (1 page)
California Family Law Monthly
Numerous court cases & documentation for hair test
Numerous newspaper articles
Character reference, dated May 29, 2003
Background statement from Applicant, undated
Character reference, dated November 1, 2003
E-mail letter of recommendation, dated November 3, 2003
Letter of recommendation, dated October 14, 2003
Letter of recommendation, dated October 7, 2003
Character reference, undated
Personal letter of referral, October 15, 2003
Character reference, October 15, 2003
Character reference, October 29, 2003
Emit Testing and Drugs of Abuse pamphlet (copy)
Journal of Clinical Psychopharmacology paper (10 pages)
Laboratory Management, August 1984, Volume 22 (4 pages)
Laboratory Management, August 1984, Volume 23, No 1 (5 pages)
Syva Systems and Services for On-Site Drug Detection (6 pages)
New York Supplement, 2d Series, pages 743-746
Memorandum and Order (11 pages)
FLOTA Mercante Grancolombiana v. FLA Constr. Equip, pages 1504-1515
Federal Supplement, pages 1214-1226
Jensen v Lick, pages 35-39
South Eastern Reporter 2d Series, pages 482-484
Unpublished Disposition, pages 1-92
Key Court Cases Involving Hair Testing (9 pages)
The Forensic Application of Testing Hair for Drugs of Abuse, pages 146-160)
Journal of Forensic Sciences, Citation Information, dated November 23, 2003
Analysis of Hair for Cocaine, dated November 23, 2003 (20 pages)
Tricho -Tech Limited articles (28 pages)
Hair Analysis as a Drug Detector article (4 pages)
Legal Challenges to Testing Hair for Drugs: A Review, pages 34-42

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     810226 - 810324  COG
         Active: USN                        810325 - 890225  HON
                  USNR             890407 - 960920  HON

 Period of Service Under Review :
Date of Enlistment: 960921               Date of Discharge: 000614

 Length of Service (years, months, days):

         Active: 03 08 15
         Inactive: None

 Age at Entry: 35                          Years Contracted: 4

 Education Level: 12                        AFQT: 54

 Highest Rate: AT2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.00 (5)    Behavior: 3.60 (5)                OTA: 3.66

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR (3), BER, NUC, MUC (2), GCM, Letters of Commendation, NRMSM (3), AFEM, Letters of Appreciation, USCG SOCR, USCG MUC (2), N&MCAM

 Days of Unauthorized Absence: None

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

GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly 3630620.

 Chronological Listing of Significant Service Events :

960921:  Applicant reenlisted for four years.

 991201:  NAVDRUGLAB, Great Lakes, IL, reported Applicant’s urine sample, received 991119, tested positive for cocaine.
000113:  Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.
000118:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
000311:  An Administrative Discharge Board, based upon a preponderance of the evidence and by a vote of 2 to 1, found that the Applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and by unanimous vote recommended retention.

000411:  Commanding Officer recommended retention. Commanding Officer’s comments (verbatim): AT2 M_'s ( Applicant 's) Admin Board is a most unique one in that there is considerable conflicting evidence. The Navy’s Drug Lab urinalysis test has indicated that her urine sample has indeed tested positive for cocaine, yet a civilian hair DNA test has concluded that no traces of cocaine exist in her body. Scores of senior Officers, Chief Petty Officers and other enlisted personnel have come forth to testify on her behalf concerning her OUTSTANDING character and performance and that her accused behavior is not at all in line with that of a drug user. Lastly, the urinalysis test which occurred on the first day of the drill weekend virtually ensures that her purported use of cocaine occurred during a civilian period of time. In this case, her civilian actions are not allowed to be prosecuted under Navy law or regulation as a drilling Selected Reservist, yet her civilian actions can be admissible for consideration in an Admin Board. In summary, this case is not clear-cut nor is it without flaw.
My opinion of AT2 M_ ( Applicant ) is that she is and has been a very hard working Sailor who has always demonstrated the utmost integrity and character in the performance of her duties. Believing she has committed the offense which she has been accused is very difficult for me. In concert with contradictory evidence, there is in my opinion a great deal of reasonable doubt concerning her guilt of misconduct. Therefore, in consideration of 19 years of unblemished service to date, I strongly recommend retention of AT2 M_ ( Applicant ) in the Naval Reserve until she reaches her 20 th year of service and reaches eligibility for retirement.
000428:  Chief of Naval Personnel recommended to Assistant Secretary of the Navy (Manpower and Reserve Affairs), Applicant’s discharge with a general (under honorable conditions) by reason of misconduct due to drug abuse.
000605:  Assistant Secretary of the Navy (Manpower and Reserve Affairs) approved recommendation for discharge with a general (under honorable conditions) by reason of misconduct due to drug abuse.
000614:  CNPC directed the Applicant's discharge with a general (under honorable conditions) by reason of misconduct due to drug abuse (use).

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was given a general discharge on 20000614 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. There is credible evidence in the record that the Applicant used illegal drugs. Mandatory processing for separation is required for sailors who abuse illegal drugs. Separation under these conditions generally results in characterization of service under other than honorable conditions. The Applicant’s statements, that she did not use drugs, do not refute the presumption of regularity in this case. The evidence of record does not demonstrate that the Applicant was not responsible for her conduct or that she should not be held accountable for her actions. Relief denied.

When the service of a member of U.S. Navy has been honest and faithful, it is appropriate to characterize that service as honorable. A general discharge is warranted when significant negative aspects of a member's conduct or performance of duty outweigh the positive aspects of the member's military record. The Applicant’s service was marred by a positive urinalysis. The Applicant’s conduct, which forms the primary basis for determining the character of her service, reflects her willful failure to meet the requirements of her contract with the U.S. Navy and falls far short of that required for an upgrade of her characterization of service. Relief is not warranted.

Despite a servicemember’s prior record of service, certain serious offenses, even though isolated, warrant separation from the naval service in order to maintain proper order and discipline. The Applicant’s service record is marred by illegal drug use, thus substantiating the misconduct for which she was separated. The summary of service clearly documents that misconduct due to drug abuse was the reason the Applicant was discharged. Regulations limit the Board’s review to a determination on the propriety and equity of the discharge. In the Applicant’s case, the Board could discern no impropriety or inequity and therefore consider his discharge proper and equitable. Relief denied.

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 her 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), Change 27, effective 27 March 2000 - 11 Feb 2001, 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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