ex-GM1, USN

Current Discharge and Applicant’s Request


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

Summary of Service

Prior Service:
Inactive:        USNR (DEP)       20020228 - 20020305     Active:  20020306-20061214 HON
                                    20061215-20091210 HON
Pre-Service Drug Waiver:

Period of Service Under Review:
Date of Current Enlistment: 20091211    Age at Enlistment:
Period of Enlistment: Years Extension
Date of Discharge: 20130311     Highest Rank/Rate: GMC
Length of Service: Year(s) Month(s) 1 Day(s)
Education Level:        AFQT: 56
Evaluation Marks:        Performance: 4.25 (4)    Behavior: 4.25 (4)      OTA: 3.96

Awards and Decorations (per DD 214):     (5) (3) (2) (4)

Periods of UA/CONF:

NJP:

- 20121001:      Article 112a (Wrongful use, possession, etc., of controlled substances)
         Awarded: Suspended:
         [Extracted from Evaluation Report and Counseling Record dated 20130311.]


SCM:

SPCM:

CC:

Retention Warning Counseling:

Administrative Corrections to the Applicant’s DD 214

The NDRB did note administrative error(s) on the original DD Form 214:

         “”

The NDRB will recommend to the Commander, Navy Personnel Command, PERS-312A, that the DD 214 be corrected as appropriate.


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:           Rehabilitation/Treatment:                 Criminal Records:       
         Personal Documentation:           Community Service:                References:     
         Department of VA letter:                  Other Documentation:    
                  Additional Statements:
         From Applicant:           From/To Representation:           From/To Congress member:        

Pertinent Regulation/Law

A. The Naval Military Personnel Manual, (NAVPERS 15560C), Change 29, effective 10 November 2009 until Present, 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 .

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

Applicant’s Issues

1.       The Applicant contends he was improperly and inequitably discharged for taking valid prescription medication as directed for an injury sustained during his Chief’s induction ceremony.

Decision

Date: June 4, 2015           Location: Washington D.C.        Representation:

By a vote of the Characterization shall .
By a vote of the Narrative Reason shall .

Discussion

The NDRB, under its responsibility to examine the propriety and equity of an Applicant’s discharge, is authorized to change the character of service and the reason for discharge if such change is warranted. In reviewing discharges, the Board presumes regularity in the conduct of governmental affairs unless there is substantial credible evidence to rebut the presumption, to include evidence submitted by the Applicant. The Board did complete a thorough review of the circumstances that led to discharge and the discharge process to ensure discharge met the pertinent standards of equity and propriety. The Applicant’s record of service included for of the Uniform Code of Military Justice (UCMJ): Article (Wrongful use, possession, etc., of controlled substances, ). The Applicant a pre-service drug waiver prior to entering the Navy. Based on the Article 112a violation, processing for administrative separation is mandatory. When notified of administrative separation processing using the procedure, the Applicant rights to consult with a qualified counsel, submit a written statement, and request an administrative board. His administrative board found that the preponderance of the evidence supported the allegations against him by a vote of 3-0 and recommended separation UNDER OTHER THAN HONORABLE CONDITIONS by a vote of 2-1. The separation authority considered the administrative board’s recommendation and the Applicant’s rebuttal and additional documentation provided in deciding to discharge him with a GENERAL (UNDER HONORABLE CONDITIONS) characterization.

: (Decisional) () . The Applicant contends he was improperly and inequitably discharged for taking valid prescription medication as directed for an injury sustained during his Chief’s induction ceremony. The NDRB conducted a detailed review of the Applicant’s service record, legal proceedings, and separations process with significant emphasis on his issue and the associated timeline of events in his case. The NDRB found that on 9 August 2012 the Applicant broke two of his fingers / finger tips during a Chief’s Indoctrination event of an unspecified nature. The medical prognosis for healing the break ranged from six weeks to three months according to documentation found in the Applicant’s official record. On 10 August 2012 the Applicant was issued a prescription for Tylenol with codeine consisting of 20 pills. Instructions were provided with the prescription to take every 4-6 hours as needed for pain. The “fill by” date on the prescription was 13 August 2012. The evidence in the record indicated the Applicant filled this prescription on 10 August 2012.

The record shows that 26 days after filling the prescription the Applicant participated in a command urinalysis on 4 September 2012. When filling out the standard urinalysis paperwork for providing his sample the Applicant wrote an abbreviation for “see medical record” in the comments / disposition section to indicate that he was taking prescribed prescription medication. On 14 September 2012 the Applicant was frocked as an E-7. On 28 September 2012 the results of the command urinalysis came back indicating that the Applicant tested positive for hydrocodone at 363 ng/ml and hydromorphone at 421 ng/ml. The detection and reporting threshold for each substance is 100 ng/ml. The drug lab sent an accompanying letter addressing these results that stated, in part, “The positive results are not consistent with the prescription profile provided. The medication listed does not contain hydrocodone or hydromorphone. Although hydrocodone is a minor metabolite of codeine, a positive result under such circumstances would necessarily be accompanied by a large codeine result. This finding is applicable only to the facts and circumstances specific to the subject specimen and assumes that the prescription records have been thoroughly researched and validated.”

The Applicant was subject to NJP for violation of UCMJ: Article 112a on 1 October 2012 and was awarded a suspended reduction in rank. The Applicant formally appealed his NJP findings on 9 October 2012 and the Commander, Carrier Strike Group Nine denied his appeal on 23 October 2012. On 13 December 2012 a command investigation into the conduct of the urinalysis of 4 September 2012 concluded that the validity of the results should be reconsidered. The investigating officer found that the urinalysis coordinator was not present for the entire urinalysis and allowed two unqualified and undesignated Chiefs to conduct the urinalysis for a significant period of time. After these Chiefs concluded the urinalysis, the samples and supplies were turned over to an unnamed and unidentified watch stander before being processed for shipment to the testing facility on 6 September 2012.

An administrative separation board was convened concerning the Applicant’s violation of UCMJ Article 112a on 17 December 2012. After hearing from the government (to include the Applicant through defense counsel) the Administrative Board determined by unanimous vote that the preponderance of the evidence supported that the Applicant was guilty of improperly using controlled substances. By a majority vote of two to one, the administrative board recommended he be separated with an UNDER OTHER THAN HONORABLE conditions discharge.

The NDRB noted a letter within the Applicant’s record dated 18 December 2012 from the Navy Drug Lab that stated the Applicant’s low level positive urinalysis could be the result of a valid RX for Tylenol with codeine. The NDRB was unclear as to if this letter was considered during the Applicant’s administrative board or why it was in partial conflict with the drug lab’s previous letter of 28 September 2012. Regardless, the NDRB presumes regularity in government affairs in that this letter was more likely than not included in the Applicant’s 3 January 2013 letter of deficiency concerning his administrative separation board. The NDRB also noted a letter dated 7 January 2013 from the Applicant’s medical provider stating that the prescription drug use detected during the urinalysis was not wrongful. Ultimately, the evidence was considered by the separation authority and the Applicant was separated on 11 March 2013 with a GENERAL (UNDER HONORABLE CONDITIONS) discharge.

After an extremely detailed review of the Applicant’s record, the details, and timeline concerning his discharge the NDRB found that the record of evidence does not indicate a prescription for medication containing hydromophone was ever issued by the Navy in treatment of the Applicant’s finger injury. Likewise, the Applicant did not provide any evidence a prescription for a medication containing hydromophone was ever issued by a Navy doctor or filled by a pharmacy aboard a military base. The NDRB rejects the Applicant’s contention that he was prescribed a medication containing hydromophone by Navy medicine, which subsequently resulted in his testing positive on a urinalysis.

Additionally, the NDRB noted that throughout the discharge process and in-spite of the errors committed in conducting the command urinalysis, the Applicant never contested the chain of custody or validity of his sample. 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 u rinalysis 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. After the package has passed this inspection, lab technicians unpack the urine specimens and carefully check that all bottles in the box correspond to the sample entries written on the accompanying chain of custody form (DD 2624). The bottles are then removed and inspected with the technicians noting any specimen container discrepancies, such as broken bottles, damage of tamper evidence seals, missing, incorrect, or incomplete social security numbers on the bottle labels or DD 2624s, and leakage of urine. The lab reports all discrepancies back to the command. If the discrepancies are serious enough to raise doubt in the validity of the results, the samples will not be tested. The NDSL conducts an initial screening test on all specimens and negative specimens are discarded. If a sample screens positive during the initial screening, it is then tested a second time. If the sample screens negative during the second screening, it is discarded. If the sample screens positive a second time, it is considered a “presumptive positive.” All “presumptive positive” specimens undergo a Gas Chromatography/Mass Spectrometry confirmation test. The specimen must have tested positive in all three tests (screen, rescreen and confirmatory) and passed scrutiny in numerous reviews by drug testing experts prior to being certified as a positive result and reported to the originating command. This certification, which is made by a senior chemist, is the final seal of approval necessary prior to reporting the specimen as a positive. If the final certifying official has any doubt as to the accuracy, scientific validity or legal defensibility of the test results, the specimen is reported as negative in favor of the service member.

The NDRB observed regularity in governmental affairs in that the Separation Authority and Staff Judge Advocate review of the discharge package ensured that the Applicant was afforded all of his administrative rights pursuant to the separation process and the timeline of events fully supported the review of all relevant materials throughout the Applicant’s discharge process. The Applicant did not submit any documentation to rebut any presumption of regularity in governmental affairs by the NDRB. The NDRB found the characterization of the Applicant’s discharge was equitable and consistent with the characterization of discharge given others in similar circumstances. Relief denied.

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 GENERAL (UNDER HONORABLE CONDITIONS) and the narrative reason for separation shall remain MISCONDUCT (DRUG ABUSE).

The Applicant remains eligible for a personal appearance hearing for a period of fifteen years from the date of discharge. The Applicant is directed to the Addendum for additional information.

ADDENDUM: Information for the Applicant

Complaint Procedures : If you believe 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 : 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. 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. There are veterans organizations such as the American Legion and the Disabled American Veterans that are willing to provide guidance to former service members in their efforts to obtain a discharge upgrade. If a former member has been discharged for more than 15 years, has already been granted a personal appearance hearing or has otherwise exhausted their opportunities before the NDRB, the Applicant may petition the Board for Correction of Naval Records (BCNR), 701 South Courthouse Road, Suite 1001, Arlington, VA 22204-2490 for further review.

Service Benefits: The U.S. Department of Veterans Affairs (VA) determines eligibility for post-service benefits, not the NDRB. 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.

Employment/Educational Opportunities : The NDRB has no authority to upgrade a discharge for the sole purpose of enhancing employment or educational opportunities. Regulations limit the NDRB’s review to a determination of the propriety and equity of the discharge.

Reenlistment/RE-code: Effective 6 February 2015, the NDRB is authorized to change a NDRB Applicant’s Reenlistment Code if related to an accompanying change in discharge characterization or narrative, but this authority is strictly limited to those cases where an applicant’s narrative reason or characterization of discharge is changed and that change warrants revision of the previously issued reenlistment code. Additionally, the NDRB 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 is processed subsequently for an administrative involuntary separation or is referred to a court martial for misconduct, the disability evaluation is suspended 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 BCNR can grant this type of narrative reason change.

Automatic Upgrades - There is no law or regulation that provides for an unfavorable discharge to be upgraded based solely on the passage of time or good conduct subsequent to leaving naval service.

Post-Service Conduct : The NDRB is authorized to consider post-service factors in the recharacterization of a discharge. Outstanding post-service conduct, 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, is considered during Board reviews. Documentation to support a post-service conduct upgrade includes, but is not limited to: a verifiable continuous employment record; marriage and children’s birth certificates (if applicable); character witness statements; documentation of community or church service; certification of non-involvement with civil authorities; evidence of financial stability or letters of good standing from banks, credit card companies, or other financial institutions; attendance at or completion of higher education (official transcripts); and documentation of a drug-free lifestyle. The Applicant is advised that completion of these items alone does not guarantee the upgrade of an unfavorable discharge, as each discharge is reviewed by the Board on a case-by-case basis to determine if post-service accomplishments help demonstrate in-service misconduct was an aberration and not indicative of the member’s overall character.

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 NDRB 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