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

 ex-HM2 (FMF), USN
Docket No. ND04-01397

Applicant’s Request

The application for discharge review was received on 20040908.  The Applicant requests the characterization of service received at the time of discharge be changed to honorable.  The Applicant requests a personal appearance hearing before the board in the Washington, D.C. Metropolitan area.  The Applicant listed a civilian counsel as the representative on the DD Form 293.  In the acknowledgement letter, the Applicant was informed that the Naval Discharge Review Board (NDRB) first conducts a documentary review prior to any personal appearance hearing.

Decision

A documentary review was conducted in Washington, D.C. on 20050118.  After a thorough review of the records, supporting documents, facts, and circumstances unique to this case, an impropriety in the characterization of the Applicant’s service was discovered by the NDRB.  The Board’s vote was 3 to 2 that the character and reason for discharge shall change.  The discharge shall change to:  HONORABLE/SECRETARIAL AUTHORITY, authority: NAVMILPERSMAN, Article 1910-164, with a separation code of “JFF”.

PART I - APPLICANT’S ISSUES AND DOCUMENTATION

Issues, as stated

Issues submitted by Applicant and counsel (civilian counsel):

“Issue 1:  [Applicant’s Brief Pages 1-3, 22-32.]

The evidence submitted by the Navy was grossly insufficient to support the Administrative Board’s determination by a preponderance of the evidence that the charges were true because (A) the Navy presented almost no evidence relevant to the time frame of the specifications, (B) the evidence actually presented by the Navy was in most cases legally inadmissible, lacked any indicia of reliability and did not collectively constitute sufficient, credible evidence to sustain the specifications and (C) HM2 B_’s (Applicant’s) “Good Military Character” evidence negated the Navy’ s case.

Issue 2:  [Applicant’s Brief Pages 1-3, 32-42.]

The substantial and credible evidence presented by HM2 B_ (Applicant) so negated the Navy’s evidence, that there was not sufficient evidence to justify separating him from military service, or in the alternative, to support an Other Than Honorable discharge.

Issue 3:  [Applicant’s Brief Pages 1-3, 42-48.]

HM2 B_’s constitutional rights were blatantly violated by the Administrative Board’s (A) admission over objection of ex parte testimonial statements offered by the Navy in violation of HM2 B_’s (Applicant’s) Sixth Amendment right to confrontation and (B) decision to separate HM2 B_ (Applicant) based on evidence gathered through an ex parte investigation in which he was not a designated party, was not represented by counsel during any part of the investigation, was not timely provided statements made against him and was not afforded counsel until just days before the Administrative Board hearing in violation of his rights to due process and fundamental fairness.

Issue 4:  [Applicant’s Brief Pages 1-3, 49-54.]

HIM2 B_’s (Applicant’s) Other Than Honorable discharge was sufficiently “punitive” in purpose and effect as to require the quality of substantive and procedural constitutional protections associated with Courts-Martial and other ‘judicial proceedings.”

Issue 5:  Applicant’s Brief Pages 1-3, 54-57.]

The Navy errantly circumvented trial by Courts-Martial with its enhanced procedural and substantive safeguards by denying HM2 B_’s (Applicant’s) pro per demand for Courts-Martial and thereafter proceeding by Administrative Board.

Issue 6:  [Applicant’s Brief Pages 1-3, 56-58.]

The lesser standard for admissibility of evidence as stated in Milpersman 1910-510 that governs Administrative Board hearings is void for vagueness and is constitutionally deficient.

Issue 7:  Applicant’s Brief Pages 1-3, 58-60.]

HM2 B_’s (Applicant’s) rights to equal protection and equity were violated because the results of other Rota cases, involving Navy personnel who admitted greater culpability and involvement in drug use were awarded more favorable dispositions.

Issue 8:  [Applicant’s Brief Pages 1-3, 60-76.]

HM2 B_’s (Applicant’s) counsel at the Administrative Board hearing enumerated the following errors in his Letter of Deficiency.
A.  The Navy’s summary denial of counsel’s Request for a Bill of Particulars denied HM2 B_ (Applicant) substantial fairness and his constitutional right to adequate notice of the charges against him;
B.  The Navy’s summary denial of counsel’s Request for a Brief Continuance sought six (6) days before the scheduled hearing denied HM2 B_ (Applicant) due process and a fundamentally fair hearing,
C.  The Navy's denial of counsel’s Challenge for Cause of the Administrative Board members based on improper command influence denied HM2 B_ (Applicant) fundamental fairness and due process.
D.  Admitting over objection the ex parte statement of Petty Officer D_ denied HM2 B_ (Applicant) his constitutional right to confront the witnesses against him;
E.  Admitting over objection the ex parte statement of Seaman W_ denied HM2 B_ (Applicant) his constitutional right to confront the witnesses against him;
F.  Admitting over objection irrelevant newspaper articles disclosing outcomes of other drug cases and the Navy’s “Chain Of Events” impermissible created guilt by association; and
G.  The synergistic impact of the combined above enumerated errors compels that the findings must be set aside.”

Documentation

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

Letter from Applicant, dated April 12, 2004
Standard Form 180 (2)
Certified mail receipts
Letter from Applicant’s attorney, dated August 30, 2004
DD Form 149 with Applicant’s Appendix A
Declaration of Applicant, attachment, and letter of recommendation (9 pages)
Brief from Applicant and attorney (85 pages)
Appointment of an Administrative Board
Notification of Administrative Separation, dated September 4, 2002
NAVPERS 1626/7, Report and Disposition of Offense(s), dated August 23, 2002
Chain of Events (p. 1)
D_’ statement, dated October 16, 2001 (pp. 2-4)
M_’s statement, dated June 12, 2002 (pp. 5-9)
W_’s statement, dated May 11, 2001 (pp. 10-16)
B_’s statement, dated August 12, 2002 (17-21)
P_’s statement, dated August 20, 2002 (22-25)
Navy’s policy on drug abuse is “zero tolerance”
MILPERSMAN 1910-146 (pp. 1-2) (pp. 3-4 apparently deleted from exhibit)
MILPERSMAN 1910-304 (pp. 1-2)
MILPERSMAN 1910-306
MILPERSMAN 1910-302 on microfiche, but not noted on LN2 P_’s Case Summary at p. 4
MILPERSMAN 1910-510
VA Benefits Chart
Rota Coastline newspaper stories on drug use
Stars and Stripes newspaper story on drug use
UCMJ Article 112a - Wrongful use, possession, etc., of controlled substances
21 USCS § 812 (20002) Schedules of Controlled Substances
Statement by F_ M_, dated 22 August 02
NJP Appeal by ACAR J_ H_
Board requested Evaluation Report for HM2 B_ (Applicant) commencing March 16, 2001
(LN2 P_’s record of proceedings at p. 18)
CTA2 H_ D_ statement, dated October 25, 2001 and Grant of Immunity
AC3 A_ M_ Statements dated July 3, 2002 and August 5, 2002
Grant of Immunity, Pre-trial agreement, and summary court martial
AGAN L_ B_ Statements, dated August 8, 2002 and August 26, 2002, Grant of Immunity, and Pre-Trial Plea Agreement
ACAR J_ H_ Statement, dated October 15, 2002
AG3 D_ S_ Statement, dated October 15, 2002
Voluntary Statement of LT K_ H_, dated October 18, 2002
Voluntary Statement of LT J_ R. M_, dated October 17, 2002
Voluntary Statement of LCDR T_ A. C_, dated October 17, 2002 with attachments
HM2 B_ (Applicant) Service Record Materials
Meritorious Unit Commendation Citation (p. 1)
Boxer Certificate (p. 2)
Report, dated January 16, 1995 to July 15, 1996 (pp. 3-4)
Evaluation Report, dated December 16, 1996 (pp. 5-7)
Evaluation Report, dated December 16, 1995 to June 15, 1997 (pp. 8-9)
Evaluation Report, dated June 16, 1997 to October 20, 1997 (pp. 10-11)
Evaluation Report, dated October 21, 1997 to December 15, 1997 (pp. 12-13)
Evaluation Report, dated December 16, 1997 to April 17, 1998 (pp. 14-15)
Evaluation Report, dated April 18, 1998 to October 13, 1998 (pp. 16-17)
Evaluation Report, dated October 14, 1998 to June 15, 199 (pp. 18-19)
Evaluation Report, dated June 16, 1999 to March 15, 2000 (pp. 20-21)
Evaluation Report, dated March 16, 2000 to October 10, 2000 (pp. 22-23)
Evaluation Report, dated October 11, 2000 to March 15, 2001 (pp. 24-25)
HM2 B_ Surgical records dated March 14, 2001
Defense Assistance Records, dated August 23, 2002
Suspect’s Rights Acknowledgement/Statement, dated August 23, 2002 (Captain’s Mast)
Accused’s Notification and Election of Rights, dated August 23, 2002
Memorandum: Removal from Patient Care, dated August 23, 2002
Government’s List of Witnesses, dated October 8, 2002
Request for Bill of Particulars, dated October 9, 2002
Request for Continuance, dated October 15, 2002
Request for Testimonial Immunity for AZ2 N_ P_ dated October 21, 2002
Recommendation for Administrative Separation, dated October 29, 2002
Request for Verbatim Transcript of Proceedings, dated October 29, 2002
Respondent’s Letter of Deficiency, dated October 29, 2002
Government’s response to Letter of Deficiency, dated October 30, 2002
Administrative Discharge, dated November 1, 2002
Transcript of administrative discharge board hearing conduct August 21-22, 2002 with CD ROM (166 pages)

PART II - SUMMARY OF SERVICE

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

	Inactive: USNR (DEP)	941229 - 950815	COG
	Active:   None

Period of Service Under Review:

Date of Enlistment:  950816		Date of Discharge:  021114

Length of Service (years, months, days):

	Active:    07  02  29
	Inactive:  None

Age at Entry:  22			Years Contracted:  4 (39 months extension)

Education Level:  12			AFQT:  99

Highest Rate:  HM2

Final Enlisted Performance Evaluation Averages (number of marks):

Performance:  4.00 (13)	Behavior:  3.69 (13)		OTA:  3.73

Military Decorations:  None

Unit/Campaign/Service Awards:  NDSM (2), EPSM, AFEM, SSDR, FMFR, GCM (2), MUC (2), NUC, OSR (2)

Days of Unauthorized Absence:  None

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

UNDER OTHER THAN HONORABLE CONDITIONS/MISCONDUCT, authority:  NAVMILPERSMAN, Article 1910-146, formerly 3630620.

Chronological Listing of Significant Service Events:

020823:	Report and Disposition of Offenses: Violation of Article 112a (2 specs): (1) Wrongful use ecstasy between 010511 and 020812, to wit: wrongfully use ecstasy, (2) Wrongfully use cocaine between 010511-020812.  Refer to XOI 020826.

020904:	Applicant notified of intended recommendation for discharge with a least favorable characterization of under other than honorable conditions by reason of misconduct due to drug abuse.

020904:	Applicant advised of rights and having consulted with counsel certified under UCMJ Article 27(b), elected to appear before an Administrative Discharge Board.

021022:	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.

021029:	Commanding Officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.  Commanding Officer’s comments (verbatim):  Member’s choice to use drugs, as evidenced by his involvement, is not compatible with the military service.  I recommend separation with an Other Than Honorable discharge.  He is not recommended for service in the inactive reserve.

021101:	Commander, Navy Region Europe 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 20021114 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 improper (C and D).

Issue 1:  The Applicant contends that his discharge is improper or inequitable because the evidence submitted by the Navy was grossly insufficient to support the Administrative Board’s determination by a preponderance of the evidence that the charges were true.  While an administrative discharge board is neither governed by the formal rules of evidence, nor the “beyond a reasonable doubt” burden of proof, the respondent is still presumed to have committed no misconduct unless the government proves otherwise by a preponderance of the evidence.  In the Applicant’s case the government’s evidence consisted of two live witnesses coupled with five sworn statements.  The nature of this evidence implicated the Applicant by virtue of his association with convicted drug abusers and his attendance at “Rave” style parties at which illegal drugs are commonly believed to be abused.  Likewise, the evidence consisted of several witnesses who claimed to have personally seen the Applicant ingest illegal drugs such as ecstasy, cocaine and acid.  The government produced no physical or scientific evidence to buttress their case.  The evidence submitted was devoid of a positive urinalysis or other scientific indicators of illegal drug use.

In his defense, the Applicant produced the testimony of eleven witnesses.  The defense presented to the board a mixed strategy of both good military bearing and character and factual innocence.  Seven of the defense’s witnesses testified concerning the Applicant’s military bearing, characterizing it generally as outstanding.  The four percipient witnesses backed the Applicant’s claim of factual innocence.  The defense also submitted a substantial document case to include several character witness statements of unavailable witnesses and the myriad decorations, medals, citations and awards the Applicant has accumulated over his seven years of active duty service.  

The Applicant bears the burden of demonstrating to this Board that his discharge was either improper or inequitable.  The Applicant bears the burden of overcoming this presumption of regularity through the presentation of substantial and credible evidence to support his issue.  After a review of all of the evidence submitted by the Applicant and introduced before his administrative discharge board, the NDRB must conclude that the evidence submitted was factually insufficient to support a finding of misconduct by reason of drug abuse.  Specifically, the testimony of the government’s witnesses was considered by the NDRB to be unreliable and not credible.  The two witnesses who testified against the Applicant were both admitted perjurers, and both received favorable pretrial agreements in exchange for their cooperation.  One witness could not specifically allege any instances of illegal drug use against the Applicant, the other admitted to being pressured by the investigating agent to more clearly remember things that she was having difficulty remembering.  The statements introduced by the government were equally unreliable and not of the nature or quality to sustain a finding of misconduct against the Applicant.  Of the five statements introduced, two were from the government’s already discredited live witnesses.  One statement implicating the Applicant was produced by a sailor shown to have a motive for revenge against the Applicant.  Another statement implicating the Applicant was directly recanted on the witness stand in live testimony introduced by the defense.  The last of the government’s statements makes a vague and indirect reference to the Applicant’s use on a specific date, almost a year prior.  A defense witness testifying to the administrative discharge board, and subject to cross-examination, directly refuted this statement.

For the above reasons, the NDRB is satisfied that the presumption of regularity in the conduct of government affairs has been overcome.  The government’s evidence against the Applicant in this case is of neither the nature nor the quality to support a finding of misconduct by reason of drug abuse.  The Applicant’s record of outstanding military service, testimony of high-ranking superior officers at his administrative discharge board, and the strength of his percipient witnesses, completely rebutted the government’s allegations of misconduct and ultimately damaged their case beyond repair.  As such, the NDRB is satisfied the decision of the administrative discharge board was erroneous as a matter of fact.  Therefore, the Applicant’s resulting discharge characterization and narrative reason for separation were improper and shall be changed.  Because there was no other adverse information in the Applicant’s service record, the only appropriate characterization of his service would be honorable/secretarial authority.  Relief granted.

Issues 2 – 8:  By virtue of the Board’s decision on the Applicant’s first issue, no further relief can be granted.  The Board has granted the Applicant all relief possible under pertinent laws, regulations, and instructions that govern the NDRB.  As such, the remaining issues are moot, and the NDRB did not consider them.

Pertinent Regulation/Law (at time of discharge)

A.  The Naval Military Personnel Manual, (NAVPERS 15560C), re-issued October 2002, effective 22 Aug 2002 until Present, 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