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

 
 ex-RM1, USNR
Docket No. ND04-01343

Applicant’s Request

The application for discharge review was received on 20040827.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable and the reason for the discharge be changed to Expiration of Term of Service.  The Applicant requests a personal appearance review before the Board in Washington, D.C.  The Applicant was advised her case would first receive a documentary review.  The Applicant listed a civilian counsel as representative on the DD Form 293.

Decision

A documentary discharge review was conducted in Washington, D.C. on 20050428.  
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 three to two that the character and narrative reason of the discharge shall not change.  The discharge shall remain: GENERAL (UNDER HONORABLE CONDITIONS)/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-146, formerly 3630620.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Issue 1:  My 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 me during my administrative separation proceedings -- a conflict of interest that I never knowingly or intelligently waived -- resulted in harmful pre-judice.  (Use Legal Brief, page 4, Part IV, Issue 1 and Page 5 para. 10 thru page 13, para. 32.)

Issue 2:  My administrative separation with a General discharge due to misconduct was both improper and inequitable because my case was harmfully prejudice by the ineffective assistance of my Navy-detailed legal counsel.  (Use Legal Brief, page 13, para. 33 thru page 20, para. 47.)

Issue 3:  My administrative separation with a General discharge due to misconduct was both improper and inequitable because, given the considerable credible circumstantial evidence which placed my drug urinalysis results in doubt, the Administrative Board could not have properly found by a preponderance of the evidence that I had engaged in drug abuse.  (Use Legal Brief, page 20, para. 48 thru page 38, para. 91.)

Sub-Issue 3A:  Evidence that neither did I experience nor did anyone else observe me exhibit any of the physical symptoms, unusual behavior, or side-effects normally associated with such a high MDMA level corroborate my claim that I never ingested MDMA and that my urinalysis results were erroneous.  (Use Legal Brief, page 26, para. 62 thru page 28, para. 66.)

Sub-Issue 3B:  Serious deviations from the Navy guidelines for the proper collection of urine specimens during the 19 June 1999 unit sweep urinalysis led to mistakes that resulted in my erroneous urinalysis results.  (Use Legal Brief, page 28, para. 67 thru page 32, para. 77.)

Sub-Issue 3C:  My meritorious military record of nearly 20 years as well as my personal history and lifestyle, which were completely inconsistent with those of a drug abuser, weigh heavily against any theory that I wrongfully ingested MDMA or any controlled substance and corroborate my denial of drug abuse.  (Use Legal Brief, page 33, para. 78 thru page 38, para. 91.)

Issues submitted by Applicant’s civilian counsel [these issues mirror the Applicant's issues as outlined above]:

Issue 4:  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.

Issue 5:  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.

Issue 6:  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 Applicant had engaged in drug abuse.

Sub-Issue 6A:  Evidence that neither did Applicant experience nor did anyone else observe her exhibit any of the physical symptoms, unusual behavior, or side-effects normally associated with such a high MDMA level corroborate Applicant’s claim that she never ingested MDMA and that the urinalysis results were erroneous.

Sub-Issue 6B:  Serious deviations from the Navy guidelines for the proper collection of urine specimens during the 19 June 1999 unit sweep urinalysis led to mistakes that resulted in Applicant’s erroneous urinalysis results.

Sub-Issue 6C:  Applicant’s meritorious military record of nearly 20 years as well as her personal history and lifestyle, which were completely inconsistent with those of a drug abuser, weigh heavily against any theory that Applicant wrongfully ingested MDMA or any controlled substance and corroborate her denial of drug abuse.

Documentation

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

Legal brief in support of application (39 pp.)
Affidavit of Capt. H_ F_, USNR (Ret.)
Affidavit of Cdr. J_ W_, USNR
Affidavit of Applicant
Twelve pages from Applicant’s service record
Two character references from Capt. E_ M_, USNR
Affidavit of Capt. R_ R_, USNR (Ret.)
Character reference from Capt. R_ C_, USNR
Character reference from D_ W_
Character reference from OSCM R_ H_, USNR (Ret)
Character reference from P_ L_
Drug prescription summary
Medical operation summary
Letter from Applicant’s representative

PART II - SUMMARY OF SERVICE

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

	Inactive:  USNR-R		800105 - 871211	HON
		    USNR-R		871212 – 970607	HON
	Active:     None

Period of Service Under Review:

Date of Enlistment:  970608		Date of Discharge:  991108

Length of Service (years, months, days):

	Active:    None
	Inactive:  02  05  01

Age at Entry:  45			Years Contracted:  6

Education Level:  12			AFQT:  50

Highest Rate:  RM1

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (2)		Behavior:  3.50 (2)		OTA:  3.57

Military Decorations:  None

Unit/Campaign/Service Awards:  NAM (2), NRMSM (5), JMUA, NMCOSR (3)

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:

990714:	NAVDRUGLAB, Jacksonville, FL, reported Applicant’s urine sample, received 990624, tested positive for MDMA.

990717:	Applicant notified of intended recommendation for discharge under other than honorable conditions by reason of misconduct due to drug abuse.

990717:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27B, elected to appear before an administrative discharge board.

990918:	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,  recommended discharge under honorable conditions (general), and by a vote of 2 to 1, that the Applicant be transferred to the IRR.

991019:	Commanding Officer recommended discharge under honorable conditions (general) by reason of misconduct due to drug abuse.

991101:	CNMPC directed the Applicant's discharge under honorable conditions (general) by reason of misconduct due to drug abuse.

PART III – RATIONALE FOR DECISION AND PERTINENT REGULATION/LAW

Discussion

The Applicant was discharged on 19991108 under honorable conditions (general) 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).

Issues 1 and 4:  The Applicant and her civilian counsel contend that her discharge was improper and inequitable because of an alleged actual and undisclosed conflict of interest between her Navy detailed defense counsel and the administrative discharge board's recorder.  The Applicant and civilian counsel further contend this alleged conflict was never knowingly or intelligently waived and resulted in harmful prejudice.  Based upon a review of the transcribed proceedings of the administrative discharge board, the Applicant's service record (to include her administrative discharge package), and the application package for discharge review, the NDRB did not discern any impropriety or inequity in the administrative discharge process and found the Applicant's issues to be without merit.

The NDRB's review of the administrative discharge board proceedings revealed the following:
o	the Applicant was informed, at the initiation of proceedings by the senior member of the administrative discharge board, that if she or her military counsel had any objection to any matters introduced or to any proceedings of the board, she or her military counsel had the right to object to such matters or proceedings.
o	the potential conflict of interest was disclosed to the Applicant at the initiation of proceedings and was addressed in detail by the board's recorder.
o	this disclosure was followed by the Applicant's off-the-record consultation with her military counsel on this issue.
o	the Applicant's military counsel, after this consultation, stated to the members of the administrative discharge board that the recorder's presence at the proceedings would energize him to be more effective and efficient in his defense of the Applicant.
o	the Applicant's military counsel, after this consultation, stated to the members of the administrative discharge board that the Applicant had been advised and would have the opportunity to decide whether to proceed with the hearing or postpone it.
o	the Applicant elected to waive the conflict of interest and continue with the proceedings.
The Board considers these actions sufficient to ensure the Applicant was not denied her right to effective assistance of counsel.  Therefore, the Applicant’s discharge is proper and equitable and relief on this basis is denied.

Issues 2 and 5:  The Applicant and her civilian counsel contend that her discharge was improper and inequitable because the military counsel detailed to her for the administrative discharge board displayed inadequate preparation, inattention to detail, and lack of zealousness in his defense as exemplified by his failure to interview or call appropriate witnesses and his limiting the defense to only one theory.  The Applicant and civilian counsel further contend that her military counsel did not properly contact and communicate with her as his client.  Based upon a review of the transcribed proceedings of the administrative discharge board, the Applicant's service record (to include her administrative discharge package), and the application package for discharge review, the NDRB found the following:
o	these assertions are unsubstantiated and are a subjective matter with respect to how a defense may be formulated and conducted.  
o	contact between the Applicant and her military counsel may have been limited by the nature of Naval Reserve units (e.g., members living in different geographical locations and being present at the unit only during drills).
The NDRB found these issues to be without merit and, therefore, the Applicant’s discharge to be proper and equitable.  Relief on this basis is denied.

Issues 3 and 6 (including Sub-issues 3A, 3B, 6A, and 6B):  The Applicant and her civilian counsel contend that the Applicant's discharge was improper and inequitable because, given the credible circumstantial evidence surrounding the collection of urinalysis specimens, her drug urinalysis results are in doubt.  Based on the available records, the NDRB could discern nothing in the Applicant's urinalysis that would lead to the conclusion that the results were erroneous.  While the NDRB did note irregularities in the collection process, such as the leaky specimen bottle and the observer leaving the Applicant unattended to retrieve a new bottle, the Board did not consider these relevant to the outcome because the record contains no persuasive evidence of any wrongdoing by the personnel collecting urinalysis specimens on 19990918.  The integrity of the positive tests results are supported by testimony during the administrative discharge board from the Commanding Officer of the Naval Drug Laboratory, Jacksonville, FL who attested to the control measures taken to ensure the propriety of test results.  Additionally, the Applicant, through her own testimony during the administrative discharge board, rejected a hypothetical allegation that someone purposefully adulterated her urinalysis sample.  As such, this Board presumed that the urinalysis collection was regular in all respects.  Relief on this basis is denied.  

Sub-issues 3C and 6C:  The Applicant and her civilian counsel contend that her service record and her personal history and lifestyle weigh heavily against the assertion that she used illegal drugs.  The NDRB recognizes the otherwise positive nature of the Applicant's military service but, based on the documents available to the Board, cannot accurately judge her personal history and lifestyle.  Even so, a service member's service record, personal history, and lifestyle does not mean that he or she will never abuse (use) illegal drugs.  Even one instance of illegal drug use warrants separation from the Naval service in order to maintain proper order and discipline.  The Applicant contends that she never used drugs but there is credible evidence in the record that the Applicant used MDMA.  The Applicant’s service record shows the positive urinalysis to be the only discreditable incident in an otherwise meritorious career but this single incident is sufficient to warrant separation.  Relief on this basis is therefore not warranted.

Furthermore, the Board disagrees with the Applicant's contention that the discharge was inequitable.  After reviewing the Applicant's entire service record, the Board found that the characterization of the Applicant's discharge as general (under honorable conditions) was equitable and consistent with the characterization of discharge given others in similar situations and with similar records of service.  Relief on this basis is also denied.

The following is provided for the edification of the Applicant:  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.  However, 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 should 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.  As of this time, the Applicant has not provided sufficient documentation for the Board to consider.

The Applicant remains eligible for a personal appearance hearing, provided an application is received, at the NDRB, within 15 years from the date of discharge.  The Applicant can provide additional documentation to support any claims of post-service accomplishments or any other evidence related to her discharge at that time.  Representation at a personal appearance hearing is recommended but not required.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), Change 24, effective 20 May 99 until 26 March 2000, 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 II, AUTHORITY/POLICY FOR DEPARTMENTAL DISCHARGE REVIEW.

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

D.  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