DEPARTMENT OF THE NAVY
                    BOARD FOR CORRECTION OF NAVAL RECORDS
                                2 NAVY ANNEX
                          WASHINGTON DC 20370-5100

                                     TRG

                                                   Docket No: 6158-01

                                                   13 January 2003



     From:  Chairman, Board for Correction of Naval Records
     To:    Secretary of the Navy

     Subj:  REVIEW OF NAVAL RECORD OF
      Ref:  (a) Title 10 U.S.C. 1552

     End:   (1) Case Summary
            (2) Subject’s naval record

     1.     Pursuant to the provisions of reference (a), Petitioner, a
     former enlisted member in the Navy, filed an application with this
     Board requesting, in effect, that his record be corrected to show
     reinstatement in the Navy.

     2.     The Board, consisting of Mr. Rothlein, Mr. Lippolis and Mr.
     Caron, reviewed Petitioner’s allegations of error and injustice on 10
     December 2002 and, pursuant to its regulations, determined that the
     corrective action indicated below should be taken on the available
     evidence of record. Documentary material considered by the Board
     consisted of the enclosures, naval records, and applicable statutes,
     regulations and policies.

     3.     The Board, having reviewed all the facts of record pertaining
     to Petitioner’s allegations of error and injustice, finds as follows:

          a.     Before applying to this Board, Petitioner exhausted all
     administrative remedies available under existing law and regulations
     within the Department of the Navy.

          b.     Petitioner’s application was filed in a timely manner.

          c.     Petitioner enlisted in the Navy on 5 January 1988 for four
     years. The record shows that he submitted a urine sample 19 January
     1988 that tested positive for marijuana. However, the ensuing Drug and
     Alcohol Abuse Report (DAAR) was not submitted until 11 March 1988,
     after Petitioner had transferred to Hospital Corpsman Class “A”
     School. Apparently, no action was taken on the DARR and it cannot be
     ascertained from the record if it was ever filed in his field service
     record, or if he is even aware of its existence.

          d.     Petitioner reenlisted in the Navy on 13 November 1991 and
     then served in an excellent manner for about another nine years. The
     record reflects that during his periods of prior
service, he served well and received no courts-martial or nonjudicial
punishments. He reenlisted on 1 December 2000 for two years.

     e.     On 26 December 2000, a Navy drug laboratory reported that
Petitioner’s urine sample had tested positive for tetrahydracannabibol
(THC), the metabolite of marijuana, at a level of 23 nanograms per
milliliter (ng./ml.), slightly above the cutoff level of 15 ng./ml.
Petitioner then refused to accept nonjudicial punishment (NJP) and demanded
trial by court-martial. However, the command elected not to court-martial
him, apparently because of the relatively low level of THC in the urine
sample.

     f.     On 17 January 2001 Petitioner was notified of separation
processing by reason of misconduct due to drug abuse. Subsequently, his
case was considered by an administrative discharge board (ADB). During the
ADB, a chemist from the drug laboratory testified that the urinalysis alone
only shows the presence of marijuana metabolite in his system and “I cannot
infer wrongful use at the 23 ng/ml level.” The drug testing observer
testified that there was nothing unusual about Petitioner on the day of the
urinalysis and he was not trying to hide anything. The observer also stated
that it would be out of character for Petitioner to use drugs.

     g.     A Navy pharmacologist submitted a report to the ADB in which
she stated that both marijuana and hemp will produce the metabolite THC.
Further, consumption of granola could result in a positive urinalysis for
THC, since that product contains hemp oil or hemp seeds, and studies have
reported positive urinalyses from consumption of hemp products.

     h.     Petitioner’s wife testified that she began purchasing granola
in bulk from a health food store, and was unaware that it might contain
hemp oil or seeds that could result in a positive urinalysis. She
unequivocally stated that her husband did not, and would not, use drugs.
Petitioner testified that he did not use marijuana and, when informed of
the positive urinalysis, had no idea why he tested positive. He also stated
that he was using granola from a health food store, and speculated that it
may have contained hemp oil or seeds that caused his positive urinalysis.
He also pointed out that he had no disciplinary record in over 13 years of
service. Several other individuals attested to Petitioner’s good character
and opined that he was not a drug abuser. The 1988 DAAR was neither
introduced in evidence nor mentioned during the ADS.

     1.     After considering all the evidence, the ADS concluded,




























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by a 2 to 1 vote, that Petitioner had committed misconduct due to drug
abuse and also voted 2 to 1 for a general discharge. Petitioner’s counsel
submitted a letter of deficiencies about the ADS. Concerning the innocent
ingestion defense, counsel stated, in part, as follows:

          An important point was also stressed——that it was not
     (Petitioner) who came up with the possible theory of innocent
     ingestion. Instead, I told the (ADS) how this case evolved. I related
     how (Petitioner) refused mast and demanded a court—martial without
     even knowing how he tested positive for THC.

          I explained that after I was detailed (Petitioner’s) attorney, I
     instructed him to identify all medications and new foods he
     incorporated into his diet shortly before the urinalysis. I also
     instructed him to cease ingesting anything questionable. We came up
     with a list of diet supplements and medications. He also informed me
     that the only new, or unusual, food item recently introduced into his
     diet was an unknown brand of granola. I had never heard of food items
     such as granola causing a positive urinalysis, so I initially
     dismissed it as a possible innocent ingestion source.

Counsel then stated that she confirmed that the health food store at issue
sold hemp products such as bulk granola, but that the Food and Drug
Administration requires that hemp products be sterilized. However, counsel
referenced the Navy pharmacologist’s report, which confirmed that a diet of
granola containing hemp oil or seed could result in a positive urinalysis.
The entire letter of deficiency is attached to enclosure (1).

     j.     On 12 April 2001 the commanding officer (CO) forwarded the
report of the ADS to the Commander, Navy Personnel Command (CNPC), stating
that he strongly recommended Petitioner’ s retention on active duty. The CO
noted his 13 years of excellent service, his request for court-martial and
his plausible explanation for the THC in his urine. However, on 23 April
2001 CNPC directed a general discharge by reason of misconduct and
Petitioner was so discharged on 1 June 2001.

     k.     In his application, Petitioner essentially raises the same
issues raised in the discharge processing and letter of deficiencies.
Concerning his innocent ingestion of hemp oil or seeds, the Board is aware
that innocent ingestion is a defense to drug abuse under the Uniform Code
of Military Justice.




















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     1.     When an individual has been improperly discharged, the record
must be corrected to show that the individual was not discharged but
remained in the military until either the expiration of the current
enlistment or, if the enlistment has not expired, the individual must be
reinstated in the service or the record corrected to show discharge at an
appropriate date.

MAJORITY CONCLUSION:

Upon review and consideration of all the evidence of record, the majority,
consisting of Mr. Rothlein and Mr. Lippolis, concludes that Petitioner’s
request warrants favorable action. The majority notes that the DAA.R
reporting the accession urinalysis was apparently never acted upon by
anyone and it was not considered in the discharge processing. Further,
given his 13 years of excellent service since then, the majority believe it
should be given little or no weight. The majority also notes that
Petitioner was not tried by court-martial because of the very low level of
THC in his system. Accordingly, the evidence against him was not
particularly strong. The majority is also aware of Petitioner’s excellent
record and the plausible defense of innocent ingestion, as shown by the
testimony of the chemist and the pharmacologist’s report. The majority
further notes that the ADS only found misconduct and recommended discharge
based on a split decision. Additionally, the commanding officer clearly did
not believe Petitioner had used drugs and strongly recommended retention.
Based on all of the foregoing, the majority concludes that any doubt should
now be resolved in Petitioner’s favor. Therefore, the record should be
corrected to show that he was not discharged on 1 June 2001 but continued
to serve on active duty until the expiration of his two year enlistment on
30 November 2002. The record should also show that he was issued an
honorable discharge on that date with an RE- reenlistment code. The
discharge should be considered involuntary for the purpose of the payment
of separation pay.

In view of the foregoing, the majority finds the existence of an injustice
warranting the following corrective action.

MAJORITY RECOMMENDATION:

     a.     That Petitioner’s naval record be corrected to show that he was
not discharged on 1 June 2001 but continued to serve on active duty until
he was involuntarily discharged on 30 November 2002 with an honorable
characterization of service by reason of expiration of his enlistment and
an RE—i reenlistment code with the payment of full separation pay.















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     b.     That any material or entries inconsistent with or relating to
the Board’s recommendation be corrected, removed or completely expunged
from Petitioner’s record and that no such entries or material be added to
the record in the future.

     c.     That any material directed to be removed from Petitioner’s
naval record be returned to the Board, together with this Report of
Proceedings, for retention in a confidential file maintained for such
purpose, with no cross reference being made a part of Petitioner’s naval
record.

MINORITY CONCLUSION:

Mr. Caron disagrees with the majority and concludes that Petitioner’s
request does not warrant favorable action. He notes that the ii March 1988
DAAR shows a prior history of marijuana use. Further, the only evidence
before the ADS that Petitioner ingested granola with hemp seed oil or seeds
was the testimony of Petitioner and his wife, both of whom had a motive to
fabricate. Although the level of THC was very low and could have resulted
from such ingestion, it could also have occurred due to the passage of time
after the wrongful use of marijuana. Further, a majority of the ADS
evaluated the witnesses and the documentation submitted and concluded that
Petitioner was a drug abuser. Mr. Caron believes that there is insufficient
evidence to disturb the finding of misconduct, and concludes that
Petitioner was properly discharged.

In view of the foregoing, the minority finds no injustice warranting
corrective action.

MINORITY RECOMMENDATION:

That Petitioner’s request be denied.

4. It is certified that a quorum was present at the Board’s review and
deliberations, and that the foregoing is a true and complete record of the
Board’s proceedings in the above entitled matter.


ROBERT D. ZSALMAN      ALAN E. GOLDSMITH
Recorder    Acting Recorder
















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5. The foregoing report of the Board is submitted for your review and
action.




                                             W. DEAN PFIEFFER
                                             Executive Director



MAJORITY REPORT: FEB 28 2003
Reviewed and approved:



Assistant General Counsel
(Manpower and Reserve Affairs)
Acting

MINORITY REPORT:
Reviewed and approved:






























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