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

 ex-LCpl, USMC
Docket No. MD02-00463

Applicant’s Request

The application for discharge review, received 020222, requested that the characterization of service on the discharge be changed to honorable and the reason for the discharge be changed to completion of required service.  The Applicant requested a personal appearance hearing before the board in the Washington National Capital Region.  The Applicant listed civilian counsel as the representative on the DD Form 293.  In the acknowledgement letter to the Applicant, he was informed that the Naval Discharge Review Board first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary discharge review was conducted in Washington, D.C. on 021105.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, NDRB discerned no impropriety or inequity in the characterization of the Applicant’s service.  The Board’s vote was unanimous that the character and narrative reason of the discharge shall not change.  The discharge shall remain: UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority: MARCORSEPMAN 6210.5.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as submitted

I. REMEDY SOUGHT

1.  The Petitioner, having no appropriate administrative remedy other than a direct petition to the Discharge Review Board, seeks to have his records corrected to address an injustice that occurred while he was in an Active Duty status as a member of the United States Marine Corps.

2.  The Petitioner was unjustly separated by reason of misconduct (drug abuse)as a result of an administrative discharge board convened on 7 June 2001.

3.  The characterization of his discharge was Other Than Honorable, with a separation date of 5 Sep 2001.

4.  The key issue raised in this board and a subsequent letter of deficiency was that the Recorder introduced evidence of a previous positive urinalysis for cocaine over the objection of Counsel for the Respondent.

5.  The basis for this objection was that there was not chain of custody on this previous urinalysis, thus it was unable to be authenticated as the Petitioner's urine.

6.  As a result, the command had not used this defective urinalysis as a basis for either administrative separation or military justice proceedings against the Petitioner.

7.  The purpose of introducing this document was to unfairly prejudice the board against the Petitioner and nullify his innocent ingestion defense.

8.  Since there was no chain of custody on the urinalysis results from 1999 to which the Counsel for the Petitioner raised a timely objection, there was no way to verify that it was in fact the Petitioner's urine.

9.  Since it could not be identified as the Petitioner's urine, the only possible motive for introducing this service record entry was to prejudice the board against the Petitioner.

10.  Having exhausted all other avenues of relief, the Petitioner has no other recourse than to seek relief from the Discharge Review Board ("DRB") concerning this issue.

II. PETITION FOR REDRESS

11.  On 7 June 2001, an administrative board was convened by the Commanding Officer, Marine Corps Security Force Battalion to consider whether the Petitioner should be separated from the Marine Corps by reason of misconduct due to drug abuse.  See Page One of Enclosure One.

12.  The basis for this board was the fact that the Respondent had tested positive for cocaine as a result of a urinalysis conducted on 27 November 2000.  See Enclosure Two.

2.  This board recommended that the Respondent should be separated from the Marine Corps with an Other than Honorable Discharge by reason of misconduct (drug abuse). See Page Twelve of Enclosure One.

3.  The Counsel for the Petitioner timely filed a Letter of Deficiency with the reviewing authority alleging that his client suffered irreparable harm and prejudice when the results of the previous urinalysis that lacked a chain of custody were admitted into evidence in these proceedings.  See Enclosure Three.

4.  Since the service record entry that was introduced by the Recorder lacked a chain of custody and could not be used as a basis for any military justice or administrative separation, the only logical reason for offering it was to prejudice the board against the Petitioner.

5.  The Petitioner had previously demanded a trial by court-martial to prove his innocence, but he was denied this opportunity when the charge was withdrawn by the convening authority.  See Enclosure Four.

6.  The fact that the Recorder knew that it was unduly prejudicial to the Petitioner for the board to be aware of the previous urinalysis results is made clear by his actions at the start of the board.

7.  The Recorder redacted the service record entries containing this unduly prejudicial information at the start of the board, thus demonstrating his knowledge as to the weight such entries would be accorded by members.  See Enclosure Five.

8.  However, when the Petitioner raised an innocent ingestion defense, the Recorder attempted to introduce these entries into evidence.  See Enclosure Six.

9.  Although the Senior Member excluded these entries upon an objection by counsel for the Petitioner, the harm had already been done.

10.  Once this information was placed before the members, no reasonable person could expect them to forget this matter when deliberating on the merits of the innocent ingestion defense raised by the Petitioner.

11.  This is particularly critical in light of the fact that B_ S_, the Navy's own drug lab chemist, testified that the Respondent's test results were low enough to be consistent with innocent ingestion and that the Respondent would not necessarily have felt any effects from unknowingly ingesting the amount at issue in this case.  See Pages Three and Four of Enclosure One.

12.  This amount was determined by extrapolating back from the nanogram level tested to what it would have been during the time period at issue.

13.  While the Respondent had been drinking alcohol during this time and this would have dulled his ability to perceive any effect from unknowingly ingesting cocaine, Mr. S_ testified that he would have felt no ill effects whether he had been drinking or not.  See Page Four of Enclosure One.

14.  Counsel for the Petitioner also provided the board with testimony from M_ S_, a bar manager in Philadelphia who is a cousin of the Petitioner's spouse.

15.  Mr. S_ testified to having attended a wedding with the Petitioner and his spouse, later winding up at the bar that he manages.  He testified that the Petitioner was alone in the bar in uniform.  He also testified that the Petitioner was alone on more than one occasion.

16.  Mr. S_ further stated under oath that the Respondent had left his drink unattended on at least one occasion.

17.  Mr. S_ also described an incident at his bar where an employee who does not drink alcoholic beverages appeared to have been drugged after consuming a glass of pineapple juice at the bar.

18.  The Petitioner testified under oath and denied knowingly using drugs.  He also testified that he had previously turned down nonjudicial punishment and demanded trial by court-martial in order to clear his name.  Unfortunately, the charge preferred against him was withdrawn and he was never provided with this opportunity.

19.  The Counsel for the Respondent never tried to portray his client as a perfect Marine, but rather as a good performer who had a prior disciplinary record for petty offenses such as underage drinking and entries regarding a lack of maturity.

20.  The proof that he had overcome these matters and was on the right track occurred in December of 2000, when his command restored him to his present pay grade.
.In restoring him to his present pay grade, his chain of command clearly believed that he was on the right track and deserved a clean slate.

21.  If his chain of command did not share this sentiment, then each member of his rating chain would have been acting in a professionally irresponsible manner and be deemed derelict in the performance of his or her duties.

22.  We do not restore members to their rank hoping that they will earn our trust, but because their performance and attitude merit it.

23.  The testimony by his chain of command at the hearing showed that the Respondent is a solid performer with a good attitude toward the Marine Corps and that they would each like to serve with him should he be retained.  See Pages Five and Six of Enclosure One.

24.  By his actions, the Respondent proved that he had learned from his mistakes and deserved a clean slate; however, the actions of the Recorder in introducing a previous urinalysis for which there was no chain of custody deprived him of the opportunity to have a full and fair hearing.

25.  Just as it is impossible to "unring" a bell that has been struck, it is impossible to remove the taint from this board that occurred when the members were made aware of the previous urinalysis.

26.  No reasonable person could expect members to avoid recalling the previous urinalysis when evaluating the Respondent's innocent ingestion defense in order to determine whether misconduct occurred.

27.  A positive urinalysis raises a presumption of knowing use, but this presumption is a rebuttable one and can be disproved by evidence raised by the Respondent.

28.  In this case, the Respondent raised innocent ingestion as a defense and the government's own chemist testified that his results were low enough to be consistent with innocent ingestion.

29.  The defense also introduced evidence of a previous problem at the bar where the Petitioner may have unknowingly ingested cocaine.

30.  Other than the inherently prejudicial urinalysis entry that lacked a chain of custody, the Recorder was unable to produce any of the evidence required to discount the possibility of innocent ingestion iaw United States v. Campbell, 50 MJ 154 (1999).

31.  Due to this prejudicial information being provided to the board, the proceedings were deficient, unjust and deprived the Petitioner of procedural and substantive due process.

III. SUMMARY OF RELIEF REQUESTED

32.  Since the Petitioner raised a viable innocent ingestion defense that was supported by the Navy's own drug lab chemist, he successfully rebutted the presumption that a positive urinalysis is indicative of knowing use.

33.  However, due to the prejudicial actions of the Recorder, the Petitioner was wrongfully separated with an Other Than Honorable discharge by reason of misconduct.  See Enclosures Seven and Eight.

34.  He also received a re-enlistment code that barred him from entering any other branch of the armed forces.  See Enclosures Seven and Eight.

WHEREFORE:

(a)  The Petitioner respectfully requests that the Board find that the basis for his separation was unjust, as were the nature and characterization of his discharge;

(b)  The Petitioner respectfully requests that the nature of his discharge be changed to an Honorable Discharge, with the basis and separation code reflecting by Secretarial Authority, Completion of Required Service or some other similar innocuous code;

(c)  Since the Petitioner's nature and character of discharge would be upgraded if this petition were granted, then the underlying re-enlistment code would have to be changed as well.

(d)  While the Board may not possess the authority to change the re-enlistment code to RE- I in order to reflect the wishes of the Petitioner, it can recommend that the Secretary do so or not oppose any BCNR petition to this effect.

(e)  The Petitioner also requests that the Board grant any an all other relief as it may deem appropriate to the facts of this case.  Respectfully submitted, 

Documentation

In addition to the service record, the following additional documentation, submitted by the Applicant, was considered:

Summarized Record of Administrative Board Proceedings, consisting of fourteen pages
Letter Appointing Administrative Board dated 14 May 01, consisting of three pages
Letter of Deficiency dated 11 Jun 01, consisting of six pages
Withdrawal of charges ICO LCPL (Applicant), consisting of four pages
Page 11 entries, consisting of two pages
GCMA ltr 1910 dated 28 Aug 01 separating (Applicant), consisting of one page
DD-214, consisting of two pages

PART II - SUMMARY OF SERVICE

Prior Service (component, dates of service, type of discharge):

	Active:   None
	Inactive: USMCR(J)		970116 - 980104	COG

Period of Service Under Review:

Date of Enlistment:  980105		Date of Discharge:  010905

Length of Service (years, months, days):

	Active:    03  08  01
	Inactive:  None

Age at Entry:  18			Years Contracted:  4

Education Level:  12			AFQT:  39

Highest Rank:  LCpl

Final Enlisted Performance Evaluation Averages (number of marks):

Proficiency:  4.0 (8)			Conduct:  3.7 (8)

Military Decorations:  None

Unit/Campaign/Service Awards:  Letter of Appreciation (2)

Days of Unauthorized Absence:  None

Character, Narrative Reason, and Authority of Discharge (at time of issuance):

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  MARCORSEPMAN 6210.5.

Chronological Listing of Significant Service Events:

970115:	Applicant briefed upon and certified understanding of Marine Corps policy concerning illegal use of drugs.

990114:	Counseled for deficiencies in performance and conduct.  [Alcohol related incident, specifically, drinking under age on 990111.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990115: 	Applicant prescreened for substance abuse by SACO following incident of underage drinking in the barracks.

990212:	NJP for violation of UCMJ, Article 92:
Specification: Disobeyed a lawful order given by 1stSgt.
Awarded forfeiture of $260.00 per month for 1 month, correctional custody for 7 days.  Forfeiture suspended for 6 months.  Not appealed.

990225: 	Applicant screened for substance abuse by a certified counselor at ARD Norfolk regarding his underage drinking.

990324: 	Applicant completed IMPACT.

990520: 	Applicant returns to SACO following a second incident of underage drinking in the barracks.  Scheduled substance abuse rescreen with ARD for 2 Jun 99.

990602: 	Applicant no show for rescreen.  Rescheduled for 30 Jun 99.

990602: 	Vacate suspended forfeiture awarded at NJP dated 990212.

990602:	Counseled for deficiencies in performance and conduct.  [Underage drinking, failure to obey orders from superiors, unauthorized absence, disregard for Marine Corps policy directives, immaturity, and irresponsible behavior.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

990630: 	Applicant rescreened by an ARD counselor.  No further treatment recommended at this time.

991012: 	Applicant's urine sample shows positive for cocaine in the September 2000 unit sweep.  Scheduled for a drug screening at ARD on 18 Oct 99.

991018: 	Applicant screened for drug abuse by an ARD counselor.  Applicant recommended for separation processing with no further treatment necessary.

991129:	Counseled for deficiencies in performance and conduct.  [Possible illegal drug involvement, drug usage identified through urinalysis confirmed by NAVDRUGLAB, Jacksonville, FL message 070101Z Oct99.  Being that the DD Form 2624 did not have chain of custody entries, Applicant is not being processed for discharge or pending NJP for violation of Article 112a of the UCMJ.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

000327:	NJP for violation of UCMJ, Article 92:
Specification: Failure to obey a lawful general order by drinking under the legal drinking age.
Awarded forfeiture of $563.00 per month for 2 month, correctional custody for 30 days, reduction to PFC.  Forfeiture suspended for 6 months.  Not appealed.

000328: 	Applicant found fit for confinement.

000811:	Counseled for deficiencies in performance and conduct.  [Driving a government vehicle without having a license to operate such vehicle.]  Necessary corrective actions explained, sources of assistance provided, disciplinary and discharge warning issued.

001207:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 001129, tested positive for cocaine.

010423:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

010423:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an Administrative Discharge Board.

010604:	Counseled for deficiencies in performance and conduct.  [Illegal drug involvement, cocaine usage identified through urinalysis confirmed by Navy Drug Lab, Jacksonville, FL message 072139Z Dec 00.]  Necessary corrective actions explained, sources of assistance provided.

010604: 	Applicant counseled concerning eligibility for substance abuse treatment.

010607:	An Administrative Discharge Board, based upon a preponderance of the evidence and by unanimous vote, found that the Applicant had committed misconduct due to drug abuse, that the misconduct warranted separation, and recommended discharge under other than honorable conditions.

010614:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  The factual basis for this recommendation was Applicant’s urine sample testing positive for cocaine, identified through NAVDRUGLAB message 072139Z Dec 00.  

010828:	GCMCA [Commanding General, Fleet Marine Force, Atlantic] directed the Applicant's discharge under other than honorable conditions by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 010828 under other than honorable conditions for misconduct due to drug abuse (A).  The Board presumed regularity in the conduct of governmental affairs (B).  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, the Board found that the discharge was proper and equitable (C and D).

Issue 1.  Normally, to permit relief, an error or injustice must have existed during the period of enlistment in question.  No such error or injustice occurred during the Applicant’s enlistment.  The Applicant’s positive urinalysis from October 1999, in which the chain of custody was not documented properly, was admissible as evidence in the Applicant’s administrative discharge board.  Formal rules of evidence that bind court-martial proceedings do not apply to administrative discharge boards.  The fact that the Applicant was promoted to LCpl again after his reduction at NJP does not provide a basis for relief to his characterization of service.  There is credible evidence in the record that the Applicant used illegal drugs.  Drug abuse, even one occasion, warranted processing for separation, normally under other than honorable conditions.  No other narrative reason more clearly describes the circumstances surrounding the Applicant’s processing for administrative separation.  The positive aspects of the Applicant’s service record do not mitigate his illegal drug use.  Relief denied.

Concerning a change in reenlistment code, the NDRB has no authority to change reenlistment codes or make recommendations to permit reenlistment, reentry, or reinstatement into the Naval Service or any other branch of the Armed Forces.  Neither a less than fully honorable discharge nor an unfavorable “RE” code is, in itself, a bar to reenlistment.  A request for waiver is normally done only during the processing of a formal application for enlistment through a recruiter.

Additionally, 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 the service.  

The Applicant is reminded that he remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of his discharge.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  Paragraph 6210, MISCONDUCT, of the Marine Corps Separation and Retirement Manual, (MCO P1900.16E), effective 31 Jan 97 until Present. 

B.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 2, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.  

C.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.2, PROPRIETY OF THE DISCHARGE.

D.  Secretary of the Navy Instruction 5420.174C of 22 August 1984 (Manual for Discharge Review, 1984), enclosure (1), Chapter 9, paragraph 9.3, EQUITY OF THE DISCHARGE. 

PART IV - INFORMATION FOR THE APPLICANT

If you believe that the decision in your case is unclear, not responsive to the issues you raised, or does not otherwise comport with the decisional document requirements of DoD Directive 1332.28, you may submit a complaint in accordance with Enclosure (5) of that Directive.  You should read Enclosure (5) of the Directive before submitting such a complaint.  The complaint procedure does not permit a challenge of the merits of the decision; it is designed solely to ensure that the decisional documents meet applicable requirements for clarity and responsiveness.  You may view DoD Directive 1332.28 and other Decisional Documents by going online at “afls10.jag.af.mil”.  

The names, and votes of the members of the Board are recorded on the original of this document and may be obtained from the service records by writing to:

		Naval Council of Personnel Boards
		Attn:  Naval Discharge Review Board
		720 Kennon Street SE Rm 309
		Washington Navy Yard DC  20374-5023