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my son in the Navy in San Diego just poped positive for cocaine

on a drug test. He...
my son in the Navy in San Diego just poped positive for cocaine on a drug test. He swears he did not knowingly take any illegal drugs and does not even k now anyone that uses cocaine. He said all he can think of is that him and his shipmates were at a strp club the weekend before he was tested and he felt bad and had a bad headache. None of the others wanted to leave, but one of the girls there gave him what she told him was an Ibuprophen, which he took. He now wonders if it was something else. He wanted to get a lawyer and witnesses and possibly the girl to tell them, but the told him he could not because they could not postpone Mast, When he told his XO that he was going to fight it he told him it was mandatory discharge anyway and that it was his fault for putting himself it that situation. I have recently read that especially in bars on money and glasses there is good chance there is enough residual drugs to cause a positive test so it might not even be the pill she gave him. I told him he should fight it, refuse Mast, and request a court martial trial. He may have already had mast as he went out to sea for 5 days and found out the day he left. I told him not to let them scare him into a discharge when he is innocent. He has been in for 1.5 years and has a very good record and has recieved many ribbons and his warfare pin during his first deployment. The burden of proof is on the Navy to prove he knowing tokk and illegal substance, I would think. What are his chances of being aquitted and would you have any suggestions I could pass on to him once I'm able to communicate with him??
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Answered in 6 minutes by:
7/18/2013
Marsha411JD
Marsha411JD, Lawyer
Category: Military Law
Satisfied Customers: 20,417
Experience: Licensed attorney and former Navy JAG serving ashore, afloat and at the OJAG
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Hello,

Thank you for the information and your question and I am sorry to read about your son's situation. Just to be clear, can you tell me if he is attached to a ship?

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Customer reply replied 4 years ago

Yes, he is attached to a ship and is stationed in San Diego. For security reasons I should probably not reveal the name of his ship as i have said he is at sea now for a short duration off the coast.

Hello again and thank you for your reply. That is fine, I don't need to know what ship he is on or whether he is at sea. I asked that question though because a servicemember who is attached to an afloat command does not have the legal option of demanding court-martial in lieu of NJP (Article 15). That is a provision of the law. So, unfortunately, your son cannot refuse Mast.

That said, he can and hopefully did provide his side of the facts. His CO has to find that my a preponderance of the evidence that he violated Article 112a of the UCMJ. Quite honestly, as long as there are no evidentiary issues with the drug test itself, such as chain of custody or why it was administered, the CO has the preponderance just by way of the positive results. Your son has the right to appeal the outcome of the Mast up to the GCM authority, who is the Admiral above his CO, but it is unlikely that his Mast will be overturned. Again that assumes that there are no drug sampling problems or a problem with procedure in the Mast itself.

Once there is an Article 15 for drug use, then per Navy instructions processing for administrative separation is mandatory. Your son can submit his statement and any potential evidence that he has in objection to the separation, but again, in an effort to be honest here, it isn't likely to convince the separation approving authority that he should be retained. If he could get endorsements from his chain of command that says he should be retained, then they might, but not very likely. What your son has told you may be true, but this is not the first time his chain of command, or the Navy, has heard this defense. It takes a dosage level of cocaine to meet the minimum requirements for a positive test in the urinalysis and cocaine itself does not come in pill form. I can't really speak to the evidence or what proof he has of his position, I can only tell you what the law is and what he is facing.

Please feel free to ask any follow up questions that you might have. I would be glad to assist you further if I can.
Marsha411JD
Marsha411JD, Lawyer
Category: Military Law
Satisfied Customers: 20,417
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Customer reply replied 4 years ago

Thanks,


He just informed me that they did everything including the separation board (DSB) all the same day and never gave him a chance to appeal or go in front of the board and try for a better discharge at least. He said he's getting an OTH. He said they will be separating him within a week. Is that normal and can he appeal after he is out??? Thank You

Hello again James--I am not sure what has actually occurred, but I can tell you that unless he signed a waiver of an appeal of his NJP and separation processing, this could not all happen in the same day. He really needs to go to PERSREP (the JAG's that assist with NJP and admin separation advice and boards) and speak to them. I can't second guess what is going on, but it looks like something is getting lost in translation. Either he isn't understanding what he has read and signed or he is not communicating effectively to you what is going on. That said, because he has only been on AD for a year a half, he would not have a right to go in front of the administrative discharge board. However, as I mentioned he could have elected to submit an appeal to his NJP and then submit a statement related to his processing for separation. That is why I highly recommend he speak to the PERSREP attorneys. That way they have access to his record and can explain what is happening and what his options are.

If he has waived his right to appeal his NJP, then separation processing can happen fairly fast. A week is about the fastest it usually occurs. If he is separated, then he will have to apply for an upgrade of his discharge through the Navy Discharge Review Board.
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