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NAVY | DRB | 2007_Navy | ND0700984

Original file (ND0700984.rtf) Auto-classification: Denied

ex-RM1, USN-R

Current Discharge and Applicant’s Request

Application Received: 20070710

Characterization of Service Received:

Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN (DRUG ABUSE)

Applicant’s Request:     Characterization change to:
                           Narrative Reason change to:

Summary of Service
Prior Service:
Inactive: US N R -R          19800105 - 19871211              Active:
         USNR-R   19871212 - 19970607 HONORABLE

Period of Service Under Review:
Date of Enlistment: 19970608      Period of enlistment : Years Extension          Date of Discharge: 19991108
Length of Service : Active: NONE Inactive: Yrs Mths 01 D ys       Education Level:
Age at Enlistment: AFQT: 50 Highest Rank /Rate : RM1
Evaluation marks: Performance: 4.0 ( 2 )     Behavior: 3.5 ( 2 )          OTA: 3.57
Awards and Decorations ( per DD 214): NAM (2) NRMSM (5) JMUA NMCOSR (3)

Periods of UA /C ONF :

Drug La b :        1
         19990714         Lab Location: Jacksonville, FL. Results of urinalysis: Positive for MDMA ( otherwise known as E c s tasy ) .

NJPs :

S CMs :

SPCMs:

C C :

Retention Warnings: .

Types of Documents Submitted

Related to Military Service:      DD 214:          Service and/or Medical Record:          Other Records:

Related to Post-Service Period:
         Employment:                        Finances:                          Education /Training :
         Health/Medical Records:          Substance Abuse:                           Criminal Records:
         Family/Personal Status:          Community Service:                References:

Additional Statements From Applicant:             From Representat ion :              From Member of Congress:

Other Documentation (Describe)

Prediction of Impairment from Urine Benzoylecgonine Concentrations article
Profiles of Urine Samples Taken from Ecstasy Users at Rave Parties; Analysis by Immunoassays, HPLC, and GC-MS article

NDRB Documentary Review Conducted (date):        20050428
NDRB Documentary Review Docket Number:   ND04-01343
NDRB Documentary Review Findings:                 No change warranted.

Applicant Testified:
Applicant Available for Questions:
Witnesses:
Observers:

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

Applicant’s Issues

1. The Applicant’s administrative separation with a general discharge due to misconduct was both improper and inequitable because the actual and undisclosed conflict of interest of the Navy legal counsel detailed to represent her during her administrative separation proceedings- a conflict of interest that Applicant never knowingly or intelligently waived – resulted in harmful prejudice.

2. The Applicant’s administrative separation with a general discharge due to misconduct was both improper and inequitable because her case was harmfully prejudiced by the ineffective assistance of her Navy-detailed legal counsel.

3 . The Applicant’s administrative separation with a general discharge due to misconduct was both improper and inequitable because given the considerable credible circumstantial evidence which placed her drug urinalysis results in doubt, the administrative board could not have properly found by a preponderance of the evidence that the Applicant had engaged in drug abuse.

Decision

Date: 20 08 0620             Location: Washington D.C         R epresentation :

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall MISCONDUCT (DRUG ABUSE) .

Discussion

Issue 1 ( ) : . The Applicant states her administrative separation with a general discharge due to misconduct was both improper and inequitable because the actual and undisclosed conflict of interest of the Navy legal counsel detailed to represent her during her administrative separation proceedings - a conflict of interest that Applicant never knowingly or intelligently waived – resulted in harmful prejudice. After a r eview of the Applicants records, including the transcript of the administrative board, it was discovered the Applicant was given an opportunity to delay the board due to a possible conflict of interest with her legal representation and the board recorder. The record of trial has fourteen pages of transcript at the beginning of the proceedings describing the situation concerning the board recorder and her legal representative; this was done to ensure the situation was placed on record and explored to the satisfaction of all parties here. The recorder stated in the transcript “I want to make sure you understand that if you are uncomfortable or if you think that his (the Applicants counsel) ability to represent you fully in any way was compromised by our relationship basically all you’ve got to do is say you don’t think that I need to be here. The Applicant responded and states “quite honestly, I don’t want this to drag on any longer”. Also, during the Applicant ’ s personal appearance hearing of 20 June 2008 she stated she only became unhappy with her counsel after the administrative boards decision was rendered ; t he Applicant claims her counsel did not want to pursue the case any further. Although the Applicant claims she was being misrepresented by her counsel the evidence does not support her claim. B ase on the evidence of record, the government provided fair representation for the Applicant and she was fully aware of the civilian relationship between the board recorder and her legal representative . The Board determined r elief was not warranted.

Issue 2 ( ) : . The Applicant states her administrative separation with a general discharge due to misconduct was both improper and inequitable because her case was harmfully prejudiced by the ineffective assistance of her Navy-detailed legal counsel. The Applicant admitted during testimony at the time of the administrative board proceedings, she was comfortable with her legal counsel. During her personal hearing at the NDRB, t he Applicant stated her counsel made no attempts to help her after the administrative board vote and as a result she made a decision to seek out the services of a personnel lawyer to continue pursuing her case. E vidence presented does not support the Applicant’s claim military legal counsel failed to effectively assist her in representing her case. The Board determined r elief was not warranted.

Issue 3 ( ): . T he Applicant’s states her administrative separation with a general discharge due to misconduct was both improper and inequitable because given the considerable credible circumstantial evidence which placed her drug urinalysis results in doubt, the administrative board could not have properly found by a preponderance of the evidence that the Applicant had engaged in drug abuse. In reviewing discharges, the Board presumes regularity in the conduct of Government affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. During the personal appearance hearing the Applicant stated her initial bottle used for the urine sample had holes in it. She was given a second bottle in which the urine from the initial bottle was transferred. The second bottle was properly sealed and marked by the Applicant with all required information. The Applicant indicated her urine sample never left her possession until it was transferred into the sample bottle, which was then sealed and initialed for . The Board considered the Applicant’s claim procedures during the collection were in doubt. However, during questioning of the Applicant, and during review by the Board, members determined the collection procedure had not been compromised by the fact the original bottle had holes in it and a second bottle had to be retrieved : the chain of custody for the Applicant ’s urine sample was never broken .

It should be noted the Navy’s cut-off standard for MDMA (Ecstasy) is 500 ng/ml; the Applicant’s sample was returned from the drug analysis with 7,965 ng/ml, over 15 times the standard threshold. I t must also be pointed out the Applicant could have received a punitive discharge for violation of UCMJ 112a but the Commanding Officer elected to give the Applicant a general discharge . After a complete review of all the evidence in this case, t he NRDB found that the Applicant ’ s service was properly and equitably characterized. The Board determined an upgrade was not warranted.

After a thorough review of the available evidence, to include the Applicant’s Summary of Service, Medical and Service Record Entries, Discharge Process and evidence submitted by the Applicant, the Board found

Pertinent Regulation/Law

A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 24, effective 20 May 99 until 26 March 2000,
Article 1910-146, 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 II, Para 211, Regularity of Government Affairs , Part V, Para 502, Propriety and Para 503, Equity .

C. The Manual for Courts-Martial authorizes the award of a punitive discharge if adjudged as part of the sentence upon conviction by a special or general court-martial for violation of the UCMJ, Article 112a .

ADDENDUM: Information for the Applicant

Complaint Procedures : 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 Instruction 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Instruction to the Joint Service Review Activity, OUSD (P&R) PI-LP, The Pentagon, Washington, DC 20301-4000 . You should read Enclosure (5) of the Instruction 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 Instruction 1332.28 and other Decisional Documents by going online at “ http://Boards.law.af.mil . ”

Additional Reviews : Subsequent to a document review, former members are eligible for a personal appearance hearing, provi ded the 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 additional evidence related to this discharge. Representation at a personal appearance hearing is recommended but not required. If a former member has been discharged for more than 15 years , has already been grante d a personal appearance hearing or has otherwise exhausted his opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 2 Navy Annex, Washington, DC 20370-5100 for further review.

Service Benefits: The Veterans Administration determines eligibility for post-service benefits, not the Naval Discharge Review Board. There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans' benefits and this issue does not serve to provide a foundation upon which the Board can grant relief.

Employmen t / Educational Opportunities : 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 of the propriety and equity of the discharge.

Reenlistment/RE-code: Since the NDRB has no jurisdiction over reenlistment, reentry, or reinstatement into the Navy, Marine Corps, or any other of the Armed Forces, the NDRB is not authorized to change a reenlistment code. Only the Board for Correction of Naval Records (BCNR) can make changes to reenlistment codes. Additionally, the Board has no authority to upgrade a discharge for the sole purpose of enhancing reenlistment opportunities. An unfavorable “RE” code is, in itself, not a bar to reenlistment. A request for a waiver can be submitted during the processing of a formal application for reenlistment through a recruiter.

Medical Conditions and Misconduct : DoD disability regulations do not preclude a disciplinary separation. Appropriate regulations stipulate that separations for misconduct take precedence over potential separations for other reasons. Whenever a member is being processed through the Physical Evaluation Board, and subsequently is processed for an administrative involuntary separation for misconduct, the disability evaluation is suspended. The Physical Evaluation Board case remains in suspense pending the outcome of the non-disability proceedings. If the action includes either a punitive or administrative discharge for misconduct, the medical board report is filed in the member’s terminated health record. Additionally, the NDRB does not have the authority to change a narrative reason for separation to one indicating a medical disability or other medical related reasons. Only the Board for Correction of Naval Records can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation, which provides that an unfavorable discharge may be upgraded based solely on the passage of time or good conduct in civilian life subsequent to leaving Naval service. The NDRB is authorized to consider post-service factors in the recharacterization of a discharge to the extent such matters provide a basis for a more thorough understanding of the Applicant’s performance and conduct during the period of service under review. Examples of documentation that may be provided to the Board include proof of educational pursuits, verifiable employment records, documentation of community service, credible evidence of a substance free lifestyle and certification of non-involvement with civil authorities.

Issues Concerning Bad-Conduct Discharges (BCD ) – Because relevant and material facts stated in a court-martial specification are presumed by the NDRB to be established facts, issues relating to the Applicant’s innocence of charges for which he was found guilty cannot form a basis for relief. With respect to a discharge adjudged by a court-martial, the action of the NDRB is restricted to upgrades based on clemency. Clemency is an act of leniency that reduces the severity of the punishment imposed.

Board Membership: 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

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NAVY | DRB | 2007_Navy | ND0700984

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