Search Decisions

Decision Text

NAVY | DRB | 2005_Navy | ND0500088
Original file (ND0500088.rtf) Auto-classification: Denied


5420
CORB:003
14 Feb 06

From: Secretarial Review Authority
To: Naval Discharge Review Board (NDRB)
Via: President, Naval Discharge Review Board

Subj: REQUEST FOR REVIEW: CASE OF H------O. MC____-,
(B---------) , EX AT2, USNR

Ref: (a) President, NDRB ltr of 31 Oct 05
         (b) NDRB Decisional Document (Docket No.
ND05-00088)
         (c) Ms. C-------ltr of 13 Dec 05 w/encls
         (d) SECNAVINST 5420.174D
        
Encl: (1) Medical Advisory Memo of 30 Jan 06

1. I have reviewed subject case as requested by reference (a). It is my determination that the decision of the NDRB (reference (b)) is not supported by the evidence of record, which includes the additional documents submitted by subject member (reference (c)). Accordingly, per the authority granted me in reference (d), applicant’s discharge will not change and will remain characterized as general (under honorable conditions) by reason of misconduct due to drug abuse. Following is a discussion of the issues presented by applicant at her personal appearance hearing.

2. As an issue of propriety, the applicant claimed that her discharge was improper in that she did not knowingly ingest illegal drugs. It was, and is, the applicant’s contention that drugs were passed to her through her husband’s body fluids as a result of his self-admitted drug usage. In support of this contention, the applicant presented scientific literature that supports the premise that drugs can be passed to another individual via body fluids. Additionally, the applicant presented the results of a hair analysis in January 2000 that tested negative for drugs. Applicant also submitted case law and scientific literature attesting to the validity of this method of testing for illegal drugs.

3. In response to the above issue, my Senior Medical Officer, in collaboration with officials of the Naval Drug Testing Laboratory, Great Lakes, Illinois, conducted an analysis of the
Subj: REQUEST FOR REVIEW: CASE OF,
, EX AT2, USNR

evidence of this case to determine whether applicant’s claim was valid. It was his opinion (enclosure (1)) that, despite awarding every benefit of the doubt to applicant, that the resulting level of Benzoylecgoine (aka: BZE, a cocaine metabolite) likely to appear in her November 1999 urine sample would have been significantly under the level minimally required to register a “positive” finding for BZE given the claimed daily intake of cocaine by her husband. Hence, applicant’s contention that her positive urinalysis was the result of passive transfer from her cocaine-using husband’s semen transmitted by sexual intercourse cannot be supported. Additionally, her negative hair sample, taken approximately 65 days after the urine sample, does not prove that she did not abuse illegal drugs. It merely suggests that the BZE detected in her urine represented an isolated vice frequent use of cocaine.

4. Based on the above, I found that applicant’s use of drugs, as evidenced by her positive urinalysis, was knowing, and thus supporting her administrative separation for misconduct due to drug abuse.

5. The applicant also presented two issues of equity for the Board’s consideration. The first was that the applicant’s discharge was too harsh in light of her nineteen plus years of honorable service. Having previously determined that applicant’s abuse of illegal drugs was knowing, and having considered the many letters and statements in her case file attesting to her good character, I did not find the length or quality of her previous service to be mitigating factors. On the contrary, I found applicants long-term service to be an aggravating factor in that a Sailor with her experience and familiarity with regulations should be held to a higher standard. The Navy’s zero tolerance policy towards illegal drug use is widely known, and has been for years. Accordingly, I do not accept the argument that an individual with the applicant’s knowledge of the impact of drugs upon good order and discipline should be afforded leniency or be processed differently than others who commit a similar offense. It is apparent, however, that applicant’s in-service record was considered by separation authorities given that she was awarded a general (under honorable conditions) discharge rather than an under other than honorable conditions discharge as is typically awarded to those separated for misconduct due to drug abuse.

Subj: REQUEST FOR REVIEW: CASE OF,
(, EX AT2, USNR

6. The second issue of equity raised by applicant was that her post-service record provides evidence that drug use is inconsistent with her demonstrated lifestyle. Reference (b) noted that applicant had not provided corroboration of this lifestyle thus finding relief on this basis to be inappropriate.
Reference (d) provided this corroboration which was determined to be credible and thus, accepted. Nevertheless, despite
applicant’s post-service accomplishments, I find they do not mitigate her in-service misconduct to the degree that would warrant an upgrade in her characterization of service, or would
support a determination that she had not committed the offense for which she was administratively separated.

7. The use of illegal drugs is a serious offense and consequently, those individuals administratively separated under this basis will not be afforded relief without sufficient evidence that the discharge was improper or inequitable. In this case, the record of evidence does not demonstrate that the discharge was improper, nor does it show that applicant was treated differently than others similarly situated, that current policies with respect to drug use have changed, or that her quality of service (including post-service) mitigates her misconduct. For these reasons, applicant’s reason and characterization of discharge shall not change.

8. This case is returned to the President, NDBR, for continued processing. Applicant is reminded that she may petition the Board for Correction of Naval Records for relief if she believes an injustice or error has occurred in the review of her case.



                                                      M. L. C______
                                                      Colonel, USMC
                                                      Director,
                                                      Secretary of the Navy
                                                      Council of Review Boards




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

ex-AT2, USNR
Docket No. ND05-00088

Applicant’s Request
The application for discharge review was received on 20041013. 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. The Applicant informed the Board she was in the process of working with an attorney. The Applicant obtained representation by the Disabled American Veterans.

Decision

A personal appearance discharge review was conducted in Washington, D.C. Metropolitan area on 20050923. After a thorough review of all available records, supporting documents, facts, and circumstances unique to this case, NDRB discerned an inequity in the characterization of discharge and an impropriety in the reason for discharge. The Board’s vote was 3 to 2 that the characterization of service and the narrative reason for the discharge shall change. The discharge shall change to: Honorable/Secretarial Authority.

 A personal appearance discharge review was conducted in Washington, D.C. on YYYYMMDD. 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 unanimous that the character of the discharge shall not change. The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority: NAVMILPERSMAN, Article 1910-146, formerly Article 3630620.

 If appropriate add the following:
 The NDRB did note administrative error(s) on the original DD Form 214. Block 18, Remarks, should contain the following statement: "CONTINUOUS HONORABLE ACTIVE DUTY FROM XXXXXX UNTIL XXXXXX," and Block 28, Narrative Reason for Separation, should read: "_____________________" vice "___________________." The Commander, Naval Personnel Command, Millington, TN, will be notified, recommending the DD Form 214 be corrected or reissued, as appropriate.






THIS IS THE CORRECT SHELL FOR MISCONDUCT DRUGS effective
27 March 2000 until 11 Feb 2001.
SPN CODE HKK. (Discharged for misconduct due to drug abuse)
THE FINDING FOR Drug abuse, (Article 1910-146, previously 3630620) IS EFFECTIVE 27 March 2000 until Present.

THE SPN CODE IS EFFECTIVE 930628 - PRESENT

A general discharge is written GENERAL (UNDER HONORABLE CONDITIONS)


PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated


 Issues submitted at time of Applicants personal appearance hearing supersede those submitted originally on Form DD-293.
1. Equity - Discharge to harsh based on 19 years of honorable service.

2. Equity – Post service.

3. Propriety – I did not use drugs.


 Documentation
In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:
Letter from Applicant to Naval Discharge Review Board (NDRB), dated
October 01, 2004
Supporting Documents/Additional Issues (handwritten) (undated) (2 pages) (2 copies)
Letter from Applicant to NDRB, dated May 5, 2003 (2 pages)
Letter from Applicant to NDRB, dated February 18, 2003 (2 pages)
Letter from United States Senate Constituent Representative to Applicant, dated
January 27, 2003
 Letter from United States Senate Constituent Representative to Applicant, dated
 November 07, 2002
Letter from Applicant to her Senator, dated November 19, 2002
Letter from Applicant to NDRB, dated November 19, 2002 (2 pages)
Letter from Applicant to NDRB, dated November 13, 2002 (2 pages)
Letter from Board for Correction of Naval Records (BCNR) to Applicant, dated
September 12, 2002
Letter from BCNR to Applicant, dated April 27, 2001 (2 nd page missing, subsequently obtained from BCNR)
Letter from United States Senate Area Representative, dated November 27, 2003
Letter from Navy Personnel Command Congressional Liaison Office to Applicant's
Senator, dated November 17, 2000
DD Form 214 for period from March 25, 1981 to February 25, 1985 (2 copies)
DD Form 214 for period from February 26, 1985 to February 25, 1989
Letter from Director, Naval Council of Personnel Boards to Applicant's Senator, dated
February 25, 2003
Letter from United States Senate Constituent Representative to Applicant, dated
April 15, 2003
Letter from Applicant to BCNR, dated May 05, 2003 (2 pages)
Annual Retirement Point Record, dated June 24, 1999
Laboratory Test Results Letter from Commanding Officer, NAVDRUGLAB GREAT
LAKES IL, dated February 11, 2000, with enclosures (4 pages)
Naval message 011454Z DEC 99 from NAVDRUGLAB GREAT LAKES IL (2 pages)
Affidavit from W. C_ B_, Manager, Associated Pathologists Laboratories, Forensic
Toxicology Laboratory, dated February 16, 2000
Associated Pathologists Laboratories results for specimen 000019773, collected
18 January 2000 (2 copies)
E-mail from H_ T_ to Applicant, dated May 25, 2001
E-mail from J_ T_ to F_ T_, dated August 27, 2001
Appointment of Administrative Board by CO, Naval Air Reserve Center Denver
(unsigned, undated)
NAVAIRESCEN DENVER NOTICE 5420, Primary/Collateral Duties, Councils, and
Committees (undated) (5 pages)
Record of Proceedings of Administrative Board in Case of H_ B. M_ (Applicant)
(82 pages)
Excerpt from Recommendations of Administrative Board (Comments of the
Commanding Officer), case of H_ B. M_ (Applicant) (undated) (2 copies)
Excerpt from proceedings guide of Administrative Board Senior Member reflecting
record of vote regarding misconduct (undated)
Statement from Applicant, undated (3 pages)
Admissibility of Hair Analysis for Drugs of Abuse, (source un-cited) (4 pages)
Hair Analysis -- Overcoming Urinalysis Shortcomings, The Army Lawyer , February
1990
Key Court Cases Involving Hair Testing (source un-cited) (undated) (8 pages)
New York Appellate Court Permits Hair Testing for Cocaine in Custody Case,
 California Family Law Monthly (2 pages)
Cross-Motion in case of Bernadette Brown v. City of New York
Brown v. Smith, 505 New York Supplement , 2d Series (4 pages)
United States v. BUSH, Military Justice Reporter (8 pages)
Nevada Employment Security v. Cynthia Holmes (un-cited) (12 pages)
Judge Admits Hair Analysis Test Results, New York Law Journal , dated
October 24, 1990
United States v. Anthony Medina (source un-cited) (8 pages)
Peranzo v. Coughlin, 608 Federal Supplement (12 pages)
Peranzo v. Coughlin, 675 Federal Reporter (4 pages)
Storms v. Coughlin, 600 Federal Supplement (13 pages)
Jensen v. Lick, 589 Federal Supplement (5 pages)
Smith v. The State of Georgia, 298 South Eastern Reporter , 2d Series (3 pages)
Wykoff v. Resig (source un-cited) (11 pages)
McClure v. Maass, 885 Federal Reporter (5 pages)
United States v. Louisiana-Pacific Corp., 682 Federal Supplement (25 pages)
United States v. Louisiana-Pacific Corp., 682 Federal Supplement (19 pages)
Lomax v. McCaughtry, 949 Federal Reporter (3 pages)
Chaney v. Southern Railway Co., 847 Federal Reporter (7 pages)
Acuna v. Lewis, 937 Federal Reporter (3 pages)
Harrison v. Dahm, 911 Federal Reporter (7 pages)
Fowler v. New York City Department of Sanitation, 704 Federal Supplement (12 pages)
Sullivan v. Ford, 828 Federal Supplement (5 pages)
Thompson v. Hall, 883 Federal Reporter (3 pages)
False Positive, The Sciences (8 pages)
17 probationary cops fail drug test by a hair, New York Post , dated March 11, 1996
Napoleon’s hair held arsenic, Associated Press (undated)
Splitting Hairs to Find the Roots of Drug Use, The Washington Post , dated
March 14, 1990
Drug Testing Services: Urine Screening; Unisource Screening, Background Checks, and
Drug Testing , printed May 28, 2003
Testing Methods: Urinalysis; CorporateDrugTesting.com , printed May 28, 2003
(2 pages)
Superior Test, CorporateDrugTesting.com , printed May 28, 2003 (2 pages)
Business Sectors: Law Enforcement: Hair Analysis, LGC , printed May 28, 2003
(2 pages)
Testing Hair for Illicit Drug Use, National Institute of Justice Research , printed
May 28, 2003 (2 pages)
Sectional hair testing. Judicial and clinical applications, Pure Applied Chemistry ,
Volume 72, No. 6 (10 pages)
Technical Review. Hair Testing: just how accurate is it? Surveillance & Society , Vol 1,
No. 1 (undated) (16 pages) (2 copies)
Frequently Asked Questions -- Drug Testing, VirtualHRScreening.com , printed
June 11, 2003 (8 pages)
Competitive Laboratory Information, CorrectionsDrugTesting.com , printed June 11,
2003 (2 pages)
Medications & Substances Causing False Positives, PassYourDrugTest.com , printed
June 2, 2003 (3 pages)
False Positives, GC/MS Confirmation, Cross Reactivity, GC/MS Availability,
 wwwmed.com , printed June 2, 2003 (2 pages)
Frequently Asked Questions, wwwmed.com , printed June 2, 2003 (4 pages)
Testimony on Federal Workplace Drug-Testing from Acting Director, Center for
Substance Abuse Prevention, Substance Abuse and Mental Health Services
Administration, before the House Committee on Commerce, given July 23, 1998
(8 pages)
New Study Shows no Race Bias with Hair Testing; DaimlerChrysler Drug Case;
Psychemedics Corporation Completes 2,000,000 Corporate Drug Tests; Drug Testing
 in the News , printed June 2, 2003 (3 pages)
 Testing Hair for Illicit Drug Use, National Institute of Justice Research in Brief,
 DrugLibrary.org , printed June 11, 2003 (7 pages)
NCADI: List of Attachments, Health.org , printed June 11, 2003 (4 pages)
New SRM Being Developed for Heart Attack Marker, Analytical Chemistry Division
News , printed June 11, 2003
US DOT Drug and Alcohol Testing, Texas Workers' Compensation Commission
(undated) (3 pages)
Frequently Asked Questions, Drug Testing Quarterly , Fall 2001, printed May 28, 2003
(2 pages)
 Drug Testing of Employees of Small Business, Small Business Advancement National
Center - University of Central Arkansas Research Website , printed February 24,
2002 (5 pages)
Ephedra Use has been linked to Stroke & Heart Attack, Ephedrine Legal Advise
Website , printed July 17, 2001 (5 pages)
Questions & Answers, Ephedra Education Council Website , printed July 17, 2001
(14 pages)
Conquering the Urine Tests, NoDrugWar.com , printed October 3, 2002
Tests on Trial: Jobs and reputations ride on unproven drug screens, NonTestersList.com ,
printed October 2, 2002 (2 pages)
Potential for False-Positive Results by the TRIAGE Panel of Drugs-of-Abuse Immunoassay, Journal of Analytical Toxicology , Vol 20, No. 3, printed October 3, 2002
(3 pages)
False-Positive Drug Tests: Causes of False-Positive Tests, Issues Ezine , printed
October 3, 2002 (3 pages)
Drug Testing - False Positives, UltimateDetox.co.uk , printed June 2, 2003 (2 pages)
Urine-Based Drug Testing Can Be Inaccurate; Performance-Based Tests Are Better,
 IndependenceInstitute.org , printed June 6, 2003 (2 pages)
Fired For False-Positive Drug Test, Tripod.com , printed November 14, 2002 (3 pages)
Dilemmas of Drug Testing: The Significance of Testing Modalities, Drug-Test.com ,
printed June 11, 2003 (3 pages)
Is hair testing cost-effective?; Case Study: Hair Versus Urine Testing, Drug-Test.com ,
printed June 11, 2003 (3 pages)
Legal Challenges to Testing Hair for Drugs: A Review, International Journal of Drug
 Testing , printed June 6, 2003 (10 pages)
 A Review of Drug Detection Testing and an Examination of Urine, Hair, Saliva and
Sweat; Technical Report No 120 (source un-cited) (undated) (2 pages)
Excerpt from International Journal of Obesity (1993), Vol 7, Supplemental 1
 Emit Testing and Drugs of Abuse, Syva Pamphlet (undated) (4 pages) (2 copies)
The Admissibility of Positive EMIT Results as Scientific Evidence: Counting Facts not
Heads, Journal of Clinical Psychopharmacology (undated) (10 pages)
Marijuana: Test Methods and Prospects, Laboratory Management , August 1984
(4 pages)
Cannabinoid Testing: Forensic and Analytical Aspects, Laboratory Management ,
January 1985 (5 pages)
Syva Systems and Services for On-Site Drug Detection (7 pages)
 The Forensic Application of Testing Hair for Drugs of Abuse (source un-cited) (undated)
(15 pages)
Abstract: Hair Analysis for Drugs of Abuse, Journal of Forensic Sciences , printed
November 23, 2003
Analysis of Hair for Cocaine, itsa.ucsf.edu , printed November 23, 2003 (20 pages)
Detection of Drugs in Hair, Tricho-Tech.co.uk , printed November 23, 2003 (2 pages)
Advantages of Hair Testing, Tricho-Tech.co.uk , printed November 23, 2003 (2 pages)
Drug Groups, Tricho-Tech.co.uk , printed November 23, 2003
Fit for Purpose: Comparisons between urine, saliva and hair testing, Tricho-Tech.co.uk ,
printed November 23, 2003 (3 pages) (2 copies)
Frequently asked questions about drug testing, Tricho-Tech.co.uk , printed November 23,
2003 (4 pages)
Uses of Detection of Drugs in Hair, Tricho-Tech.co.uk , printed November 23, 2003
Tricho-Tech News, Tricho-Tech.co.uk , printed November 23, 2003 (10 pages)
Press Release: Psychemedics Corporation Receives FDA Clearance on Its Hair Test For
Detection of Opiates, MurdockCapital.com , printed November 23, 2003 (2 pages)
Hair Analysis As a Drug Detector, dui.com, printed October 21, 2003 (4 pages)
Legal Challenges to Testing Hair for Drugs: A Review, The International Journal of
 Drug Testing , Vol 1, No. 1 (undated) (9 pages)
 Label (copy), Twinlab Metabolift Thermogenic Diet Formula, 60 capsule size
 Character reference letter from D_ B. O_, dated May 29, 2003
Character reference letter from R_ F_, Commanding Officer, NR Tactical Support
Center 0887, San Jose, CA, dated February 29, 2000
Character reference letter from CAPT M_ E. D_, USNR, dated January 30, 2000
Character reference letter from AVCM C_ J. M_, USNR-R, dated January 20, 2000
Character reference letter from LT G_ P_, USNR, dated February 10, 2000
Character reference letter from D_ K. B_, dated February 17, 2000
Character reference letter from R_ J. N_, dated March 6, 2000
Character reference letter from P_ E. G_, dated February 16, 2000
Character reference letter from M. B_, dated March 2, 2000
Character reference letter from H_ M. E_, dated February 16, 2000
Character reference letter from J_ L. A_, dated February 23, 2000
Character reference letter from L. V_, dated February 24, 2000
Character reference letter from P_ S_, dated February 22, 2000
Character reference letter from M_ D_, dated February 3, 2000
Character reference letter from J_ E. B_, dated February 16, 2000
Character reference letter from W_ F_, dated June 2, 1988
Character reference letter from D. W. R_, LtCol, USMC dated March 11, 1985
Character reference letter from D_ M. M_, dated November 1, 2003
Character reference e-mail from H_ M. E_, dated November 3, 2003
Character reference letter from J_ M_, dated October 14, 2003
Character reference letter from R. P_ M_, dated October 7, 2003
Character reference letter from H_ B_, (undated but faxed on October 15, 2003)
Character reference letter from M_ D_, dated October 15, 2003
Character reference letter from S_ W_, dated October 15, 2003
Character reference letter from J. R. A_, dated October 29, 2003
Naval Reserve Meritorious Service Medal (3rd award), dated March 24, 1999
Letter of Appreciation, dated September 27, 1998 (2 copies)
Letter of Commendation, dated April 3, 1997
Naval Reserve Meritorious Service Medal (2nd award), dated March 24, 1996
Certificate of Commendation for period from May to June 1994, with forwarding
endorsements
Navy Achievement Medal, dated May 17, 1992 (2 copies)
Letter of Commendation, dated September 6, 1990
Certificate of Appreciation, dated March 13, 1989
Letter of Appreciation, dated March 12, 1988
Certificate of Merit, AIMD TAD Sailor of Month for December 1987, with 2 copies of
cover letter, dated December 16, 1987
Letter of Appreciation, dated July 27, 1987
Letter of Appreciation, dated February 28, 1987 (2 copies)
Good Conduct Award, dated March 24, 1985
Letter of Appreciation, dated March 05, 1984 (4 copies)
Letter of Commendation, dated November 23, 1983 (2 copies)
Letter of Commendation, Plane Captain of the Quarter for April to June 1982 (3 copies),
with cover letter, dated July 7, 1982
Letter of Commendation, Redtail of the Month, January 1982 (2 copies)
Letter of Appreciation for period from July 2, 1981 to January 21, 1982 (3 copies)
Evaluation Report Letter of Extension, dated July 10, 1995
Performance Evaluation for period from 880401 to 890225
Performance Evaluation for period from 870622 to 880331
Performance Evaluation for period from 860701 to 870621
Performance Evaluation for period from 850914 to 860630
Performance Evaluation for period from 840701 to 850418
Performance Evaluation for period from 890307 to 900331
Performance Evaluation for period from 900401 to 910331
Performance Evaluation for period from 910401 to 920331
Performance Evaluation for period from 920401 to 930331
Performance Evaluation for period from 930401 to 940331
Performance Evaluation for period from 950501 to 950716
Performance Evaluation for period from 951101 to 960315
Performance Evaluation for period from 960316 to 970315
Performance Evaluation for period from 970316 to 980315
Performance Evaluation for period from 981023 to 990315
Performance Evaluation for period from 830701 to 840630
Performance Evaluation for period from 821224 to 830630
Performance Evaluation for period from 820402 to 821223
Performance Evaluation for period from 820201 to 820401
Performance Evaluation for period from 810702 to 820131
Drug test results declaration by Michael Slade, PhD, dated Sep 16, 2005 (3 pages)
Letter from Applicant’s husband R_ P_ M_, dated 20 Sep, 2005
Treatment and discharge report ico R_ M_, dated 07 Oct, 1997
Email verifying treatment of R_ P_ M_, dated Sep 16, 2005
State of Colorado motor vehicle record for R_ P_ M_, dated Feb 20, 2003
Character reference letter from Capt. J_ R. A_ USNR-R, dated Aug 15, 2005
Character reference letter from LCDR G_ P_, dated Sep 07, 2005
Character reference letter from M_ D_, dated Sep 01, 2005
Character reference letter from H_ E. G_, dated Sep 14, 2005
Character reference letter from D_ M. M_, dated Aug 29, 2005
Character reference letter from P_ L_, Asst. Dir. Napa County Cons., dated Sep 12, 2005
Character reference letter from S_ L_, Dep. Planning Dir, Sep 12, 2005
Character reference letter from S_ G_, Napa County Planning Tech., dated Sep 20, 2005
Character reference letter from C_ A_, Planner III, Sep 20, 2005
Character reference letter from C_ M. S_, Environmental Health Manager, Sep 12, 2005
Character reference letter from J_ H_ USNR-R, Sep 12, 2005
Character reference letter from P_ M_, Colo. Christian Mission Stations, dated Sep 09, 2005
Character reference letter from H_ B_, sister, Sep 10, 2005
Character reference letter from H_ E. H_, sister, Sep 13, 2005
Character reference letter from M_ B_, CDR USN-R, Sep 20, 2005
Character reference letter from J_ B_, Sep 20, 2005
Character reference letter from G_ A. C_, dated Sep 16, 2005
Email, research showing presence of cocaine in family members of users, dated Sep 07, 2005 (2 pages)
Email, Cocaine and a positive drug test, dated Sep 08, 2005 (2 pages)
Cocaine Disposition in Saliva Following Intravenous, Intranasal, and Smoked Administration, Journal of Analytical Toxicology, dated October 1997 (11 pages)
Cocaine Contamination 0f United States Paper Currency, Journal of Analytical Toxicology, dated Aug 1996 (2 pages)
Pharmacokinetics and Pharmacodynamics of Cocaine, Journal of Analytical Toxicology, dated October 1995 (20 pages)
Testing human hair of drugs of abuse. IV. Environmental cocaine contamination and washing effects, Forensic Science International, accepted Jun 20, 1994 (12 pages)
Cocaine in hair, saliva, skin, swabs, and urine of cocaine users’ children, Forensic Science International, accepted Sep 26, 1996 (12 pages)
Methods of Saliva Analysis and the Relationship between Saliva and Blood Concentaration, Shaffer Library of Drug Policy, undated (5 pages)

PART II - SUMMARY OF SERVICE

 Prior Service (component, dates of service, type of discharge):
         Inactive: USNR (DEP)     810226 - 810324  COG
         Active: USN                        810325 - 850225  HON
                  USN                       850226 – 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 (prior 7 11 01 Active/Approx 11 02 00 reserve, total)
         Inactive: None

 Age at Entry: 35                          Years Contracted: 4

 Education Level: 14 (Applicant states Bachelors degree)           AFQT: 54

 Highest Rate: AT2

 Final Enlisted Performance Evaluation Averages (number of marks):

 Performance: 4.00 (5)             Behavior: 3.80 (5)                OTA: 3.66 (5)

 Military Decorations: None

 Unit/Campaign/Service Awards: SSDR (3), BER (2), NUC, MUC (2), GCM, LoC, NRMSM (3), AFRM, LoA, USCG SOSR, USCG MUC (2), NAM, NDSM

 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.

970403:  Letter of Commendation.

980927:  Letter of Appreciation.

990324:  Naval Reserve Meritorious Service Medal.

990324:  Armed Forces Reserve Medal.

991114:  Random urinalysis, conducted at Naval Air Reserve Center Denver.
991201:  NAVDRUGLAB GREAT LAKES IL reported Applicant’s urine sample, received 991119, tested positive for cocaine.
000113:  Applicant notified of intended administrative separation by reason of misconduct due to drug abuse. The least favorable characterization of service possible is under other than honorable conditions.

000118:  Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

000118:  Applicant submits to drug test (hair) at Associated Pathologists Laboratories.

000120:  Associated Pathologists Laboratory reports negative results for cocaine.
000211:  Commanding Officer, Naval Drug Screening Laboratory, Great Lakes, IL, certifies positive urinalysis on 991122 with positive immunoassay, 991124 repeated positive immunoassay, 991129 gas chromatography/mass spectrometry, which resulted in levels of 155 ng/ml Benzoylecgonine (threshold of 100ng/ml).

000216:  Affidavit of W. C_ B_, Associated Pathologists Laboratories, Manager. States laboratory threshold of 300 pg/mg, hair test indicates no significant consumption of drugs within 90 days prior to the test (drugs require 7-10 days to be found in hair).

 000224:  Commanding Officer, Naval Air Reserve Center Denver appoints Administrative Discharge Board.
000308:  Affidavit of J. J_ S_, Ph.D., Naval Drug Screening Laboratory, Great Lakes, IL. States urine samples presented no physical evidence of tampering prior to being received at Lab; also discusses urinalysis threshold of 100ng/ml and timeframe of use detection of 2-3 days. Discounts hair test due to no generally agreed testing procedure or interpretation. Also discusses transmission of cocaine metabolite during sexual activity.

000312:  An Administrative Discharge Board, based upon preponderance of the evidence and by a vote of 2 to 1, found that the Applicant had committed misconduct due to drug abuse, and by unanimous vote recommended retention.
000411:  Commanding Officer, Naval Air Reserve Center Denver forwards results of Applicants administrative discharge board to COMNAVPERSCOM, recommending 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:  COMNAVPERSCOM directed the Applicant's discharge with a general (under honorable conditions) by reason of misconduct due to drug abuse (use).

000614:  Applicant discharged.

040712:  NDRB documentary record review Docket Number ND04-00010 conducted. Determination: discharge proper and equitable; relief not warranted.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 20000614 with a general (under honorable conditions) characterization of service for misconduct due to drug abuse (A). After a thorough review of all available records, supporting documents, facts, and circumstances unique to this case, the Board found inequity in characterization of service and impropriety in the reason for discharge (B and C). The Board voted 3 to 2 that both the characterization of service and the narrative reason for discharge shall change. The characterization of service and narrative reason for discharge shall change to: Honorable/Secretarial Authority.

The Applicant contends her discharge was improper because she did not knowingly or willingly ingest drugs, which resulted in the positive urinalysis for which she was discharged. She also contends that her discharge was too harsh based upon her service record and post service.

The Applicant’s untarnished service record documents 19 years of admirable service. Highlights of the record include 14 letters of commendation and appreciation, a Navy Achievement Medal, three Naval Reserve Meritorious Service Medals, evaluation reports recommending early promotion, ranking ahead of peers, marks of 4.0 on a 4.0 scale. Just as importantly the record lacked any sign of misconduct, nonjudicial punishment or counseling warnings. The Board believed that the record documented a service inconsistent with that of a drug user.

Additionally, the Applicant provide 42 letters of recommendation and character references from family, friends, co-workers, military and civilian supervisors, former Commanding Officers, and Command Master Chiefs which served to provide credible evidence that the Applicant’s lifestyle is not consistent with that of a drug abuser. At the Administrative board the Applicant’s former Commanding Officer and other senior military members testified to the Applicant’s strong moral character and good conduct. Furthermore, both the Administrative board and the Applicant’s Commanding Officer recommended retention in the Naval service, citing illegal drug use was not in the character of the Applicant. Based on this evidence the Applicant’s positive urinalysis was not a result of misconduct, but a result of involuntary ingestion.

Lastly the Applicant provided strong scientific evidence supporting her contention that she did not use illegal drugs. This research documents that cocaine transmitted via saliva and semen may produce positive results on the Navy’s urinalysis test yet be undetected (because of the slightly higher threshold) on a hair test. The husband of the applicant submitted a written statement declaring his drug use, a fact that he kept hidden from his wife. Furthermore, the Applicant’s legal counsel testified that though this fact was known, it was not utilized as defense at the Applicant’s administrative board because he believed that the negative hair test would be sufficient to prove the Applicant did not use illegal drugs. Finally, the Board determined that the low level positive urinalysis is consistent with the testimony of involuntary ingestion, which is further supported by the negative hair test documenting that over a long period of time the Applicant had not used cocaine. Though the hair test requires a slightly higher concentration to produce a positive result, no spikes of concentration were discovered which would indicate intentional drug usage. The Board accepted the applicant’s contention that she did not knowingly use drugs.

After careful consideration of the Applicant’s documentation, negative hair test, and the Applicant’s testimony the NDRB determined by a vote of 3 to 2, that the service member did not knowingly or willingly ingest cocaine. Therefore, the Applicant’s discharge based on drug abuse was improper and the characterization of service based upon 19 years of flawless service was inequitable. Relief is warranted based on propriety and equity. The characterization of service and reason for discharge shall be changed to “Honorable/Secretarial Authority.” Relief granted.

The Applicant has exhausted her opportunities for review by the NDRB. The Applicant may, however, petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100, if she desires further review of her case.

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 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 502, Propriety .

 C. Secretary of the Navy Instruction 5420.174D of 22 December 2004, Naval Discharge Review Board (NDRB) Procedures and Standards, Part V, Para 503, Equity .



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 “ http://Boards.law.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:

                  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

Similar Decisions

  • NAVY | DRB | 2004_Navy | ND04-00010

    Original file (ND04-00010.rtf) Auto-classification: Denied

    I did the hair test within 90 days of the urine test. 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...

  • NAVY | DRB | 2004_Navy | ND04-00355

    Original file (ND04-00355.rtf) Auto-classification: Denied

    ND04-00355 Applicant’s Request The application for discharge review was received on 20031218. 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. (PAGE 9) Exhibit B 7.

  • NAVY | BCNR | CY2002 | 04427-01

    Original file (04427-01.pdf) Auto-classification: Approved

    In a statement he submitted on the date of the NJP, The disciplinary action was based on a urine sample when he received NJP for use of f. On 23 June 2000 Petitioner appealed the NJP on the grounds that he was denied access to the "litigation package" prepared by the Navy drug laboratory, "innocent ingestion" defense or question the chain of custody at the drug laboratory. At the time of the positive urinalysis result, Petitioner had never been the subject of a disciplinary action during...

  • ARMY | BCMR | CY2004 | 2004105491C070208

    Original file (2004105491C070208.doc) Auto-classification: Denied

    THE APPLICANT'S REQUEST, STATEMENT, AND EVIDENCE: 1. COUNSEL'S REQUEST, STATEMENT AND EVIDENCE: 1. After a thorough review of the evidence and records presented to the Board, it appears that the applicant was properly discharged for misconduct as a result of a urinalysis screening that tested positive for cocaine.

  • USMC | DRB | 2005_Marine | MD0501353

    Original file (MD0501353.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. ” • The Applicant was awarded nonjudicial punishment for violating Article 112a of the UMCJ.Therefore, the Board found there is credible evidence in the record that the Applicant used illegal drugs. Therefore, the Board determined the Applicant has not provided sufficient post-service documentation for the Board to consider.

  • AF | BCMR | CY2007 | BC-2006-01752

    Original file (BC-2006-01752.doc) Auto-classification: Approved

    Subsequently, an administrative discharge board found that she wrongfully used cocaine and she was discharged with a general (under honorable conditions) discharge. At the time of her separation from the Air Force Reserve on August 4, 2005, she had 18 years and 17 days of satisfactory service. Lastly, the applicant relies on the fact that her urine and hair samples submitted to a civilian Laboratory on the date she was advised that she had tested positive for cocaine tested negative and...

  • ARMY | BCMR | CY2007 | 20070003272

    Original file (20070003272.TXT) Auto-classification: Denied

    On 12 December 2006, the applicant’s battalion commander, after having considered all matters presented in defense, mitigation and/or extenuation at a closed hearing, imposed the following punishment on the applicant for wrongfully using cocaine between 12 August 2006 and 13 September 2006: Her imposed punishment was a reduction to pay grade E-4, a forfeiture of $500.00 pay and 30 days of extra duty. The applicant appealed the punishment and a legal review determined the punishment was...

  • ARMY | DRB | CY2010 | AR20100025868

    Original file (AR20100025868.txt) Auto-classification: Denied

    Applicant Name: ????? Facts and Circumstances: Evidence of record shows that on 9 March 2010, the unit commander notified the applicant of initiation of separation action under the provisions of Chapter 14, paragraph 14-12c(2), AR 635-200, by reason of misconduct—abuse of illegal drugs for having tested positive for cocaine (091103), and for having received a General Officer Memorandum of Reprimand for driving under the influence of alcohol (080124), with a general, under honorable...

  • USMC | DRB | 2005_Marine | MD0500915

    Original file (MD0500915.rtf) Auto-classification: Denied

    The Applicant requests the Discharge Characterization of Service received at the time of discharge be changed to honorable. Mandatory processing for separation is required for Marines who abuse illegal drugs. At this time, the Applicant has not provided sufficient documentation of post service character and conduct to mitigate the misconduct that resulted in his characterization of discharge.

  • AF | BCMR | CY2006 | BC-2006-00128

    Original file (BC-2006-00128.doc) Auto-classification: Denied

    On 14 Mar 02, Psychemedics contacted AFOSI, relating that the “March” hair sample tested negative and that there was not enough hair to provide conclusive results. On 16 Apr 02, Psychemedics’ results reported that Cocaine was found to be present at the level of 0.8ng/10mg. She agreed with the Psychemedics scientist that the hair analysis test results could not stand alone, that they were below the cutoff, and the government failed miserably to comply with any aspects of Psychemedics’...