Search Decisions

Decision Text

NAVY | DRB | 2009_Navy | ND0900632
Original file (ND0900632.rtf) Auto-classification: Denied

ex-AME3, USN
Current Discharge and Applicant’s Request
Application Received: 20090123
Characterization of Service Received:
Narrative Reason for Discharge:
Authority for Discharge: MILPERSMAN

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

Summary of Service

Prior Service:
Inactive: US N R (DEP)      19961214 - 19970901     Active:          19970902 - 20000831 HON

Period of Service Under Review:
Date of Enlistment: 20000901     Age at Enlistment:
Period of E nlistment : Years Extension
Date of Discharge: 20030721      Highest Rank/Rate: AME2
Length of Service : Y ear ( s ) M onth ( s ) 20 D a y ( s )
Education Level:        AFQT: 39
Evaluation M arks:         Performance: 4.0 ( 5 )      Behavior: 3.0 ( 5 )        OTA: 3.28

Awards and Decorations ( per DD 214):      (2) (2) EAWS

Periods of UA /C ONF :

SCM: SPCM: CC: Retention Warning Counseling :

NJP :
- 200305 28 :       Article 112a (Drug use - Marijuana )
         Awarded : Susp ended :

Types of Documents Submitted/reviewed

 Related to Military Service:     
DD 214:         Service/ 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 Congress m ember :

Oth er Documentation :
-        20030429: Urine test results from Saint Anthony Drug Testing Laboratory.
-        20030430: Hair test results from American Medical Laboratories, Inc.

Pertinent Regulation/Law

 A. The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 August 2002 until 25 January 2004, Article 1910-146, Separation by Reason of Misconduct - Drug Abuse.


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

Applicant’s Issues

 1. Equity of discharge due to erroneous urinalysis test .

Decision

Date: 20 0 9 0416            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

 : ( ) . The Applicant contends he is entitled to a discharge upgrade due to his belief the discharge was too harsh because he never did d r ugs. 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. The Applicant’s record of service was marred by a failed drug test which is punishable as a violation of the U niform C ode of M ilitary J ustice (UCMJ): Article 112a (Drug abuse). The NDRB advises the Applicant certain serious offenses, even though isolated, warrant separation from the service in order to maintain proper order and discipline. Violation of Article 112a is one such offense requiring mandatory separation regardless of time in service, grade or record of service. Violations of this policy result in, at a minimum, mandatory processing for an administrative separation which usually results in an unfavorable characterization of discharge or, at a maximum, a punitive discharge and possible confinement if adjudicated and awarded as part of a sentence by a special or general court-martial. The command did not refer the Applicant for a court-martial but opted instead f or an administrative discharge based on drug use as demonstrated by his positive drug test.

The Applicant ’s urine sample dated 14 April 2003 tested positive for a THC level of 26 ng/ml ( using 15 ng/ml as the standard minimum indication for a positive analysis by the Naval Drug Laboratory, San Diego ), per Naval Message DTG 162132ZAPR03 . The Applicant, in an attempt to prove his innocence to his command, provided two additional test results from both urine and hair sample performed at civilian laboratories : The u rine test was dated 29 April 2003 and performed by the Saint Anthony Drug Testing Laboratory and a hair test dated 30 April 2003 was performed by the Ame rican Medical Laboratories, Inc. These were paid for by the Applicant. It should be noted the civilian test labs utilized by the Applicant had testing cut off points of 50ng/ml, well above the Navy’s standard minimum levels of 15ng/ml. Neither of the additional urine or hair test samples tested at a level of 5 0 ng/ml or higher, which is required to register positive usage based on their testing methods. However, for the edification of the Applicant these tests are invalid for providing evidence the Naval Drug Laboratory erred in testing the original sample ; additionally, the standard for a positive test is much more sensitive under Navy testing regulations. Sample tests conducted weeks after a command urinalysis by non-Department of the Navy approved lab s is not authorized nor can they be used to disprove positive test results as determined during a command urinalysis. The NDRB determined the awarded discharge characterization was appropriate and an upgrade would be inappropriate.

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

Pertinent Regulation/Law (cont)

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 (Drug use).

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 or is referred to a court martial 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 or for any basis wherein an Other Than Honorable Discharge is authorized, 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 special 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. The NDRB does not have the jurisdictional authority to review a discharge or dismissal resulting from a general court-martial.

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

Similar Decisions

  • CG | BCMR | Alcohol and Drug Cases | 2002-093

    Original file (2002-093.pdf) Auto-classification: Denied

    of the Personnel Manual, his CO was recommending that he be administratively discharged from the Coast Guard. He argued that because the applicant acknowledged his rights, declined to make a statement, and signed the first endorsement on his CO’s recommendation for his discharge, the applicant was not denied any due process regarding his discharge. He contended that the “irregularity” with which the CO handled the charges against him likely resulted in his command applying...

  • NAVY | DRB | 2011_Navy | ND1102053

    Original file (ND1102053.rtf) Auto-classification: Denied

    For reason(s) not specified within the record, the Applicant’s request for trial by court-martial was not granted. After careful consideration of all the available evidence, to include the evidence submitted by the Applicant and the administrative processes conducted at the time of his separation, the NDRB determined this issue did not provide a basis for which relief could be granted. ” Additional Reviews : After a document review has been conducted, former members are eligible for a...

  • NAVY | DRB | 2011_Navy | ND1101712

    Original file (ND1101712.rtf) Auto-classification: Denied

    The Applicant could have provided documentation as detailed in the Post-Service Conduct paragraph in the Addendum , however, completion of these items alone does not guarantee an upgrade from an unfavorable discharge as each discharge is reviewed by the Board on a case by case basis to determine if post-service conduct establishes that the in-service misconduct was an aberration. Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of...

  • NAVY | DRB | 2015_Navy | ND1401743

    Original file (ND1401743.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entries and discharge process, the Board found Therefore, the awarded characterization of service shall remain UNDER HONORABLE CONDITIONS (GENERAL) and the narrative reason for separation shall remain SECRETARIAL AUTHORITY. ” Additional Reviews : After a document...

  • NAVY | DRB | 2005_Navy | ND0500088

    Original file (ND0500088.rtf) Auto-classification: Denied

    5420 CORB:003 14 Feb 06 From: Secretarial Review AuthorityTo: Naval Discharge Review Board (NDRB) Via: President, Naval Discharge Review BoardSubj: REQUEST FOR REVIEW: CASE OF H------O. MC____-, (B---------) , EX AT2, USNR DEPARTMENT OF THE NAVY NAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENT ex-AT2, USNR Docket No. 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...

  • USMC | DRB | 2010_Marine | MD1000009

    Original file (MD1000009.rtf) Auto-classification: Denied

    The Applicant acknowledged his complete understanding of the Marine Corps Policy Concerning Illegal Use of Drugs, in writing, on 24 September 2007.The basis for the Applicant’s separation was a positive urinalysis test for cocaine while under temporary additional duty orders to deploy to Iraq with a different command than his parent command. The Applicant acknowledged his understanding in writing and elected to seek counsel and requested an administrative hearing board be held.After a...

  • NAVY | DRB | 2011_Navy | ND1101806

    Original file (ND1101806.rtf) Auto-classification: Denied

    Issue 5: (Decisional) (Propriety) RELIEF NOT WARRANTED. She tested positive for THC, was informed of discharge proceedings, elected an administrative separation board, and was properly and equitably discharged with a General (Under Honorable Conditions) characterization of service for Misconduct (Drug Abuse). ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB...

  • NAVY | DRB | 2015_Navy | ND1500289

    Original file (ND1500289.rtf) Auto-classification: Denied

    The majority of board members at the NDRB view this as a validation of the presumption of regularity in the findings resulting from the Applicant’s sample as urinalysis specimens arriving at a Navy Drug Screening Laboratory (NDSL) are inspected for container damage or evidence of tampering, with particular attention to the condition of the box seals, which should be intact with the command’s Urinalysis Program Coordinator’s signature printed across the taped box seams. Summary: After a...

  • NAVY | DRB | 2014_Navy | ND1401029

    Original file (ND1401029.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1.The Applicant seeks an upgrade to receive service benefits.2. Relief denied.Summary: After a thorough review of the available evidence, to include the Applicant’s summary of service, record entriesand discharge process, the Board found Therefore, the awarded characterization of service shall and the narrative reason for separation shall remain .The Applicant remains eligible...

  • NAVY | DRB | 2009_Navy | ND0901549

    Original file (ND0901549.rtf) Auto-classification: Denied

    DEPARTMENT OF THE NAVYNAVAL DISCHARGE REVIEW BOARD (NDRB) DISCHARGE REVIEW DECISIONAL DOCUMENTApplicant’s Issues 1. ” Additional Reviews : After a document review has been conducted, former members are eligible for a personal appearance hearing, provided the application is received at the NDRB within 15 years of the Applicant’s date of discharge. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.