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NAVY | DRB | 2004_Navy | ND04-00355
Original file (ND04-00355.rtf) Auto-classification: Denied


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

ex-GM3, USN
Docket No. ND04-00355

Applicant’s Request
The application for discharge review was received on 20031218. The Applicant requests the reason for the discharge be changed. The Applicant requests a personal appearance hearing before the board in the Washington National Capital Region. The Applicant did not list any representative on the DD Form 293. In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20040910. 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 4-1 that the character and reason for discharge 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. “On 03 Sept. 2002. Special Boat Team Twenty gave me a Urinalysis test. During the testing, the Urinalysis Program Coordinator (UPC) was Chief M_ H_. The collection process was not done the proper way. Chief H_ was not designated in writing by the Commanding Officer to be the command UPC until 06 Nov. 2002, which is over two months after this test was taken. Enclosed is a copy of the Designation Letter labeled Exhibit A . Also, during the testing Chief H_ did not put the required Tamper-Resistant tape on any of the bottles. This was stated as a discrepancy in a letter sent to Special Boat Squadron 2 from the Jacksonville Drug Lab on 16 Sept. 2002. Also enclosed is a copy of this letter labeled Exhibit B . Chief H_ stated that Tamper-Resistant tape was not needed because he was taught that the tape was used to give the person a “warm fuzzy feeling” and that the urine sample would not be tampered with. He also stated that if you are on a ship and you run out of Tamper-Resistant tape, then you continue without the tape. Exhibit C , OPNAVLNST 5350.4C dated 29 June 99, Section H page B-4 states that Tamper-Resistant tape is required on all samples collected. Chief H_ failed to follow this requirement. It also states that tape of the
same length and width may be substituted. Therefore, there should be no reason why a Tamper-Resistant tape was not available and applied. Chief H_ stated over and over again that the tape was not needed. Exhibit D thru F , all talk about Tamper-Resistant tape being an important part of the collection process. Everyone in the room taking the test that day was either very mad or questioned taking the test knowing that the test could be tampered with, without this tape, and Chief H_ admitted not putting the tape on each sample.

On 16 Sept. 2002, it came back that I did in fact test positive on the Urinalysis for Cocaine. The command had MA2 H_ S_ pick me up from a Gun Shoot in Aberdeen, Maryland. He told me he didn’t know why I had to come back. I immediately thought something had happened to a family member. The next day I talked to Chief H_ and he told me about the test results, I was shocked and immediately requested a retest of my urine, blood or hair. I was denied. Soon after, I talked to Lt. S_ a JAG at NOB Norfolk and with the given information he stated that he felt I had a good case. He talked to his Department Head and confirmed the fact that my command was possibly wrong. He said he was going to try to help me as much as possible. He called LTCDR T_ the JAG at my command and after that Lt. S_ was nowhere to be found. He never returned my calls and was not there when I went to see him. He was avoiding me. I then talked to LTCDR T_ and I felt that he was misleading me and was talking to my command about out conversations. I then hired a civilian lawyer to help me because I felt he wouldn’t be bias and would put an honest effort into my case. Exhibit G states representation of counsel. During this time the command sent me to the barracks to work and wanted nothing more to do with me. Also during this time, I made the All Navy Wrestling Tryouts and wanted to wrestle if I was able to stay in the Navy. I requested to talk to the XO and CMC but was turned down by my point of contact Lt. C_ at my command. I put in a request chit to speak to the CO and Lt. C_ bottom lined the request chit saying “I already told you NO you can’t talk to anyone.” Request chit is Exhibit H . After this I felt that my command was trying there hardest to put me down and get me out of the Navy.

On 02 Jan. 2003, my parents came to Norfolk. Virginia to be with me at the Separations Board. I was very worried about this board. The 3 members on the board were all a part of Special Boat Team 20 in separate ways. Because of the past two JAG officers and the way I was treated by the command, I feel that there is no way I would have succeeded.

During the Board most of the witnesses the command had against me, agreed with my lawyer and raised more than a reasonable doubt. Exhibit I & J are transcripts of the Board, which the JAG office made from the audio recording. The pages are missing a lot of important information that the JAG office did not add to the transcript from the audio recording that my lawyer agreed with.

The following highlighted areas are numbered and a brief description is given for each. They each represent either mistakes that have occurred throughout this whole process or are important facts about the case.

1.       (PAGE 6) I was assigned to the command on 26 Mar. 2002. It’s only been 5 months.
2.       (PAGE 7) Air Show was around 11 May 2002.
3.       (PAGE 7) Was not designated in writing to give Urinalysis Test.
4.       (PAGE 8) Two-person integrity was not always present.
 5.       (PAGE 9) Same as above.
6.       (PAGE 9) Exhibit B
7.       (PAGE 9) Chief H_ stating that there was no use of Tamper-Resistant Tape.
8.       (PAGE 9) Stating tape is just for comfort, if you run out of Tamper-Resistant Tape, follow Exhibit C - Section H — Part 2.
9.       (PAGE 9) Statement of OPNAVINST 5350.4C — Section H.
10.      (PAGE 10) Statement of How to fix the bottle if the seal is broken by tightening so specimen is secured and not a discrepancy.
11.      (PAGE 10) Stating that he was not designated at that point in time in writing to be the UPC, which is against regulations.
12.      (PAGE 11) Everyone in the room complained about it even people walking down the hall said it was not right. See page 22
13.      (PAGE 11) The tape is put on for Security of Specimen.
14.      (PAGE 13) Two conflicting stories. Page 9 & 13.
 15.      (PAGE 13) OPNAVINST 5350.4C states it is required.
16.      (PAGE 14) MA 1 S_ initiated the conversation asking if I knew what was going on. I told him NO. He asked if I’ve been in any trouble and if my family was all right. I told him someone in my Boat Det said it could have been the urinalysis but I said it could not have been. I was very upset and believed something had happened to my family. The only pills I’ve taken were Yellow Jackets or Ripped Fuel. They are both Dietary Supplements.
17.      (PAGE 14) I went to a bar/club with my best friend and his girlfriend.
18.      (PAGE 15) MA1 S_ stating a reason for a need of safety seals.
19.      (PAGE 15) Stating again tape is not required, disobeying OPNAVINST
5350.4C.
20.      (PAGE 16) Chief M_ stating OPNAVINST 5350.4C tape is required.
21.      (PAGE 16) Stating seals are for comfort, not for security.
22.      (PAGE 16) Same as above.
23.      (PAGE 16) States the UPC is required to use Tamper-Resistant Tape.
24.      (PAGE 17) States no reason for Tamper-Resistant Tape not to be used.
25.      (PAGE 17) States how to fix a broken seal.
26.      (PAGE 17) It is true for Cocaine. Exhibit K .
 27.      (PAGE 19-20) States accidental ingestion of Cocaine and states possible contamination of bottle.
28.      (PAGE 20) States Contamination could happen. To help eliminate this problem, use Tamper-Resistant Tape.
29.      (PAGE 21) States Innocent Ingestion.
30.      (PAGE 21) Chief H_ said rough handling and absence of seals all together happen all the time. Drug Lab Expert J_ D_ states he is wrong.
31.      (PAGE 22) Stating the feelings of people about not having seals on bottles.

Considering all the information people have read here, it has raised more than a reasonable doubt and is very upsetting that the Board members voted against me. My counsel, parents and I believe that it was a bias decision. My mother was very upset because she told my lawyer after the Board that CWO2 S_ and JAG LT. V_ were non-verbally communicating with head and eye movements as to say yes or no to certain subjects. When my mother said that I agreed because I thought something was going on but I wasn’t sure. Since my mother stated that, I was reassured of what I saw. My lawyer agreeing to the thought of the Board having a bias decision tried for another Board with members from a different place but was unable to get it. He then wrote a Letter of Discrepancy Exhibit L . He was not very happy about the way the Board went. Also enclosed are packets used in the Board as Exhibits. These are Exhibits M&N .

I was not very happy about the decision. I didn’t want to get out of the Navy. After the Board, my parents and I talked to Rhode Island Representative C_ L_. Senator L_ C_, Senator J_ R_ and Representative P_ K_. They were not happy about the Board and said that they would look into it. Exhibit 0 is a letter from Representative C_ L_ to the Commanding Officer Special Boat Team 20 and other important people. Exhibit P is a letter from my parents to Senator J_ R_. A lot of letters have been sent back and forth but nothing has come of it. Now I am out of the Navy and forced to move back home with my parents. I cannot get a job due to the Navy Separations Code GKK. My last paycheck was withheld and I now owe money to pay my Enlistment Bonus back. I have filled out many job applications and all were turned down because of this code. I am disqualified for the jobs. I am afraid the only was to regain my independence financially and personally is to change my separations code.”

 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter about Designation as special boat team twenty command urinalysis program coordinator, dated November 06, 2002 (Exhibit A)
Administrative Message from NAVDRUGLAB, Jacksonville, FL, dated September 12, 2002 (Exhibit B)
Urinalysis program Coordinator (UPC) regulations (Exhibit C, D, E) (3 pages)
UPC collection checklist (2 pages)
Key steps for Urinalysis collection sheet (Exhibit F)
Letter from Applicant’s Attorney, G_ D_ M_, dated September 30, 2002
Special Request /Authorization (Exhibit H)
Administration Board proceeding for Applicant, dated March 03, 2003 (Exhibit I) (25 pages)
Voir Dire (Exhibit J) (10 pages)
Technical Note: Urinary Excretion of Cocaine and Benzoylecgonine following Oral ingestion in a single subject (Exhibit K) (2 pages)
Letter to Commanding Officer from Applicant’s Attorney G_ D_ M_, dated January 6, 2003 (Exhibit L) (4 pages)
Letter to Commander Navy Personnel Command from Applicant’s Attorney G_ D_ M_, dated January 14, 2003 (Exhibit M) (4 pages)
Certificate of Graduation from Naval Sea Cadets Corps, dated August 20, 1994
Certificate of Advancement, dated November 18, 1994
Certificate of Completion , undated
Military Training Certificate, dated June 10, 1998
Certificate of Training, dated December 7, 2001
Evaluation Report, dated January 02, 2002 (2 pages)
Evaluation Report, dated March 25, 2002 (2pages)
Evaluation Report, dated March 24, 2002 (2 pages)
Naval Special Warfare Center, dated March 12 th 2002
Letter from Commanding Officer, dated June 19, 2002
Enlisted Qualifications history (3 pages)
Sailor/Marine American Council on Education Registry transcript (6 pages)
History of Assignments
Administrative remarks, dated October 17, 01
Letter to Senior Member of the Administrative Board from LTJG A_ H_.
Administrative separation action Character Reference Questionnaire (2 pages)
Letter to Senior Member of the Administrative Board from BM1 E_ J_ G_
Letter to Senior Member of the Administrative Board from MS1 B_ P_ M_
Letter to Senior Member of the Administrative Board from BM1 J_ L_ D_
Letter to Senior Member of the Administrative Board from MS1 (SW) F_ S_ B_
Letter to Senior Member of the Administrative Board from MS2 (AW) R_ S_ M_
Administrative Separation Action Character Reference Questionnaire (2 pages)
Results of GC/MS Analysis of Urine for Benzoylecgonine following Oral Ingestion of 25 mg Cocaine HCI
Letter from House of Representatives, Representative C_ M_ L_, dated January 16, 2003 (Exhibit O) (2 pages)
Letter to Congressman K_ from Representative C_ L_, dated January 16, 2003
Letter to Senator R_, from Representative C_ L_, dated January 16, 2003
Letter to Senator C_, from Representative C_ L_, dated January 16, 2003
Reference of Character from J_ and C_ A_, undated

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     010127 - 010409  COG
         Active: USMC              981019 – 981117  ELS (Misconduct)

 Period of Service Under Review :
Date of Enlistment: 010410               Date of Discharge: 030425

 Length of Service (years, months, days):

         Active: 02 00 17
         Inactive: None

 Age at Entry: 20                          Years Contracted: 4

Education Level: 12                        AFQT: (unreadable)

 Highest Rate: GM3

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 3.00 (2)*            Behavior: 3.00 (2)                OTA: 3.00

 Military Decorations: None

 Unit/Campaign/Service Awards: NDSM

 Days of Unauthorized Absence: None

 *Marks extracted from supporting documents provided by the Applicant.
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 :

020912:  NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 020906, tested positive for Cocaine.
         Technician stated that there was an discrepancy because the bottle was received without seal.
011024:  NJP for violation of UCMJ, Article 92: Fail to obey wrongfully having a female in his BEQ room.
         Award: Forfeiture of $283.00 per month for 1 month, restriction and extra duty for 7 days.
Forfeiture of pay suspended for 6 months. [Extracted from Commanding Officer letter 030307].
021003:  Applicant notified of intended recommendation for the least favorable characterization of service possible for the charge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by positive urinalysis on 020904.
021003:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.
030303:  An Administrative Discharge Board, based upon a preponderance of the evidence and by vote of 2 to 1, found that the Applicant had committed misconduct due to drug abuse and by a vote 2 to 1 that the misconduct warranted separation, and by a vote 2 to 1 recommended discharge be characterize as general (under honorable conditions).

030307:  Commanding Officer recommended discharge general (under honorable conditions) by reason of misconduct due to drug use. Commanding Officer’s comments: Gunner’s Mate Third Class A_ A_ (Applicant) was exposed to the standards and policies of the military prior to his enlistment with the Navy while serving in the Naval Sea Cadet Corps. Throughout his enlistment, he was further made aware of the behavior expected of a service member and the consequences for not adhering to such standards, in particular the Navy’s Zero Tolerance Policy for drug use. Despite this knowledge of his duties and responsib~t1ities as a service member, lie received nonjudicial punishment for disobeying a direct order at his first duty station. This previous NSP, coupled with his conscious decision to use cocaine, is a clear indication that his behavior does not adhere to the Navy’s standards and policies. The seriousness of his actions clearly indicates he has no place in Naval Special Warfare and should no longer be a part of the United States Navy. Therefore, I concur with the administrative board’s finding of drug use and their recommendation of a General discharge.

030403:  Commander, Naval Special Warfare Command authorized the Applicant's discharge general (under honorable conditions) by reason of misconduct due to drug use.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20030425 with a general (under honorable conditions) 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 as general or under other than honorable conditions. The evidence of record does not demonstrate that the Applicant was not responsible for his conduct or that he should not be held accountable for his actions. The Applicant’s assertions, that the test was improper because tamper-proof tape was not used did not persuade the Board that the positive urinalysis was not valid nor the subsequent discharge improper or inequitable. Additionally, 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 on the propriety and equity of the discharge. Relief denied.

The Applicant alleged that his administrative separation board was not properly conducted. After a careful review of the evidence of record, the Board determined that relief on this issue is not warranted. In reaching this determination, the Board found that the Applicant was provided all procedural due process, that no improprieties were committed by any personnel assigned to the board, and that the decision of the administrative separation board was supported by the evidence and in accordance with regulations. The Board also found that the decision of the Applicant’s Commanding Officer not to excuse members of the administrative separation board, following challenges for cause by counsel for the respondent, was a proper exercise of the discretionary authority afforded him by regulation and that he did not abuse his authority.

 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 his 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), re-issued October 2002, effective 22 Aug 2002 until Present, 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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