DEPARTMENTOFTHE NAV
BOARD FOR CORRECTION OF NAVAL RECORD
Y
S
2 NAVY ANNE
X
WASHINGTON DC 20370-510
0
CRS
Docket No: 3659-02
13 September 2002
This is in reference to your application for correction of your
naval record pursuant to the provisions of Title 10, United
States Code, Section 1552.
A three-member panel of the Board for Correction of Naval
Records, sitting in executive session, considered your
application on 31 July 2002.
injustice were reviewed in accordance with administrative
regulations and procedures applicable to the proceedings of this
Board.
Documentary material considered by the Board consisted of
your application, together with all material submitted in support
thereof, your naval record and applicable statutes, regulations
and policies.
The Board also considered the advisory opinion,
dated 9 May 2001, from the Navy Drug Testing Program Manager, a
copy of which is attached.
Your allegations of error and
After careful and conscientious consideration of the entire
record, the Board found that the evidence submitted was
insufficient to establish the existence of probable material
error or injustice.
In this regard, the Board substantially
concurred with the comments set forth in the advisory opinion.
The Board found that you reenlisted in the Navy on 5 January 2001
after more than eight years of prior active service.
reflects that on the afternoon of 29 May 2001, you submitted a
urine sample that subsequently tested positive for marijuana.
You received nonjudicial punishment (NJP) on 13 July 2001 for use
The punishment
of marijuana based on the positive urinalysis.
imposed consisted of a forfeiture of $944 and a reduction from
petty officer first class
(GSEl; E-6) to petty officer second
class (GSE2; E-5).
The record
On 30 July 2001 you appealed the NJP based on an investigation
into the chain of custody of the urine samples, and a negative
analysis of a hair sample you submitted to a private laboratory
after the NJP.
endorsement on your appeal,
that tested the hair sample had advised the command that its
21 August 2001 the commanding officer, in his
stated that the civilian laboratory
On
analysis did not invalidate the prior positive urinalysis.
The
commanding officer also rejected your contention concerning the
investigation, since it pertained to collection of urine samples
and you gave your sample on that
on the morning of 29 May 2001,
Further, the commanding officer attached a statement
afternoon.
from the urinalysis coordinator to the effect that your sample
Finally, the Navy drug
had been collected and stored properly.
laboratory reported that no urine sample showed any signs of
tampering.
Your appeal was denied on 2 November 2001.
On 14 November 2001 an administrative discharge board (ADB) found
and you were retained in
that you had not committed misconduct,
the Navy.
In their deliberations, the ADB considered the hair
sample, but made its finding based on the investigation of the
chain of custody procedures and your testimony to the effect that
you could have been exposed to marijuana through inadvertent
ingestion.
The Board considered your contention about innocent ingestion.
The advisory opinion stated that second hand marijuana smoke
would not cause a false positive urinalysis.
with the advisory opinion.
The Board concurred
With regard to your contentions pertaining to the chain of
custody of the urine samples,
sample, the Board concurred with the remarks in the commanding
officer's endorsement of your NJP appeal to the effect there was
no chain of custody problem with
analysis of your hair sample did
positive urinalysis result.
that the ADB also apparently did
reaching its favorable result.
your urine sample, and that the
not cast any doubt on the
Board additionally concluded
not rely on the hair analysis in
and the analysis of your hair
The
The Board also found that the NJP and the ADB are two separate
proceedings, and a favorable result at the latter does not
invalidate the former.
since the commanding officer's decision at NJP that you had used
drugs was reasonable, given the positive urinalysis; and since
the ADB did not consider any evidence that was not considered by
the commanding officer,
either at the NJP or during the appeal
process.
The
names and votes of the members of the panel will be furnished
upon request.
Accordingly, your application has been denied.
This is especially true in your case
It is regretted that the circumstances of your case are such that
favorable action cannot be taken.
You are entitled to have the
Board reconsider its decision upon submission of new and material
evidence or other matter not previously considered by the Board.
In this regard, it is important to keep in mind that a
presumption of regularity attaches to all official records.
2
Consequently, when applying for a correction of an official naval
record, the burden is on the applicant to demonstrate the
existence of probable material error or injustice.
Sincerely,
W. DEAN PFEIFFER
Executive Director
Enclosure
3
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