DEPARTMENT 

OF,THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX

WASHINGTON DC 20370-5100

CRS
Docket No: 4427-01
23 May 2002

From: Chairman, Board for Correction of Naval Records
To:

Secretary of the Navy

Subj:

L RECORD OF

Ref:

(a) 10 U.S.C. 1552

Encl: (1) Case Summary

(2) Subject's naval record

1. Pursuant to the provis ions of reference (a), Pet itioner, a
former enlisted member of
Board requesting, in effect,
by removing the nonjudicial punishment (NJP) of 13 June 2000,
setting aside his discharge and transferring him to the Fleet
Reserve on the first date he became eligible to do so.

that his naval record be corrected

the Navy, filed enclosure (1) with this

of'Ms. Humberd, Ms.  

2. The Board, consisting 
Suiter, reviewed Petitioner's allegations of error and injustice
on 20 March 2002 and,
that the corrective action indicated below should be taken on the
available evidence of record.
the Board consisted of the enclosures, naval records, and
applicable statutes, regulations and policies.

pursuant to its regulations, determined

Documentary material considered by

LeBlanc, and Ms.

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 to the Board was filed in a timely

manner.

C . Petitioner first enlisted in the Navy in June 1978 and

served until May 1982.
He then reenlisted in February 1985 and
served continuously on active duty until 27 March 1997.. During
these periods of service, he performed well,
engineman chief (ENC;
the subject of any disciplinary actions, and received two awards
of the Navy Achievement Medal (NAM).

E-7) qualified in surface warfare, was not

attained the rate of

W

d. Petitioner reenlisted for three years on 28 March 1997

after more than 15 years of prior active service.
he extended his enlistment for 25 months.
service, he continued to perform well,
two awards of the Navy-Marine Corps Commendation Medal.

Subsequently,
During this period of
receiving a third NAM and

e. Petitioner served without disciplinary incident in his last

The punishment imposed consisted of forfeitures of

enlistment until 13 June 2000,
cocaine.
$1283 per month for two months and a suspended period of
restriction.
Petitioner submitted on 22 May 2000, as part of a random
urinalysis.
Petitioner denied any use of illegal drugs.

In a statement he submitted on the date of the NJP,

The disciplinary action was based on a urine sample

when he received NJP for use of

f. On 23 June 2000 Petitioner appealed the NJP on the grounds
that he was denied access to the "litigation package" prepared by
the Navy drug laboratory,
"innocent ingestion" defense or question the chain of custody at
the drug laboratory.

and thus could not present a meaningful

g.

In his forwarding endorsement of 29 June 2000, the

commanding officer explained that Petitioner had initially argued
that the medications he was taking caused the positive
urinalysis, but the drug laboratory advised the command that none
of the medications would result in a positive urinalysis for
cocaine.
did not request the litigation package and  
chain of custody until after his NJP, and also noted he did not
rely on the litigation package at the NJP, but only the report
from the drug laboratory.

The commanding officer further stated that Petitioner

vertification  of the

h. On 10 July 2000 Petitioner's NJP appeal was denied by

Commander, Naval Surface Group, Pacific Northwest.

i. While Petitioner's NJP appeal was being decided, he

submitted a hair sample to a civilian drug testing laboratory.
On 14 July 2000, the laboratory reported that the hair sample had
tested negative for cocaine.

j- On 23 July 2000 an administrative discharge board (ADB)
recommended that Petitioner be separated with an other than
honorable discharge by reason of misconduct due to drug abuse,
based on the positive urinalysis and the NJP.
Petitioner introduced the favorable report from the civilian drug
laboratory.
He also testified that three days before submitting
the urine sample, he had left his drink on a bar when he went to
the restroom, thus implying that someone could have placed
cocaine in his drink at that time.
hair sample taken from him had tested negative for cocaine.
Additional evidence presented to the ADB included a statement
from a chemist employed by the Navy drug laboratory, who stated
that the positive urinalysis results

He also pointed out that the

"are low enough so as not to

At the ADB,

2

be inconsistent with innocent ingestion".
contemporaries and superiors testified that Petitioner was an
excellent chief petty officer and was not the type of person who
would use drugs.

Additionally, several

k. Petitioner's counsel submitted a letter of deficiency

He argued that insufficient

concerning the ADB proceedings.
evidence had been introduced to show knowing use of cocaine
citing the favorable hair analysis, the statement from the
chemist at the drug laboratory,
unblemished service.
improperly received at the ADB from an individual who stated that
Petitioner had used drugs prior to entering the Navy.
Counsel
also pointed out that in the letter notifying Petitioner of the
administrative separation action, he was advised that the worst
characterization of service he could receive would be a general
discharge.

and Petitioner's many years of
He also contended that testimony had been

1. On 10 August 2000 the separation authority directed

separation with a general discharge by reason of misconduct.
day later, Petitioner was so discharged with 19 years, 5 months
and 19 days of active service.

One

m. In his application, Petitioner's counsel essentially

reiterates the contentions.he made in the letter of deficiency,
stating that there was insufficient evidence in the record to
demonstrate knowing use of cocaine instead of innocent ingestion.
Included with the application are affidavits from individuals
attesting to Petitioner's good character and stating that he
would not use drugs.

n. In an advisory opinion of 27 June 2001, the Navy Drug

"does not cast doubt on or

The opinion goes on

Navy Environmental Health Center (NEHC),

Testing Program Manager,
states that a negative hair analysis  
negate the positive urinalysis for cocaine."
to state that the positive urinalysis is indicative of cocaine
ingestion within three days,
indicative of   someone who does not use cocaine
opinion of 27 July 2001 was obtained from the Deputy Program
Manager, Forensic Toxicology, Army Medical Command.
states that a negative hair test
on or negates (sic) the positive urinalysis for cocaine."
Further, he points out that use of cocaine less than once a month
could explain the positive urinalysis and the negative hair
result.

and a negative hair test  
often."

"does not in any way cast doubts

"may be

A second

 

He also

CONCLUSION:

Upon review and consideration of all the evidence of record, the
Board concludes that Petitioner's request warrants favorable
action.
he knowingly used cocaine.

regGrd, the Board simply does not believe that

In this 

3

the Board does not rely on the

In reaching this conclusion,
favorable hair analysis from the civilian drug laboratory, and
agrees with the conclusion of the two advisory opinions that the
positive urinalysis and the negative hair analysis are not
inconsistent, and the latter result neither contradicts nor casts
The Board therefore concedes that
doubt on the former.
Petitioner's urine contained a sufficient amount of the
metabolite of cocaine to result in a valid positive urinalysis.
However, the Board is also aware that at the ADB a representative
of the Navy drug laboratory stated that this result could have
been caused by innocent ingestion.

It may be that the

ADB-- someone spiked his drink--is
However, the Board does not believe that an individual

The Board cannot say with any degree of certainty how cocaine
found its way into Petitioner's body.
scenario he suggested at the  
correct.
such as Petitioner would knowingly use a controlled substance.
At the time of the positive urinalysis result, Petitioner had
never been the subject of a disciplinary action during more than
19 years of service.
Although he may have used drugs prior to
his enlistment,
he had no prior incidents of drug abuse during
his service,
urinalysis program since his 1985 reenlistment.
believes that had Petitioner been even a casual abuser of drugs,
he would have been caught  

even though he had been subject to the Navy's

long before the  

19-year point.

The Board

Petitioner had not just stayed out of trouble during his many
years of service.
He had received fine evaluations over the
years, and had been decorated for outstanding performance on
several occasions.
testified at the ADB and who submitted affidavits with
Petitioner's application that he is not the sort of individual
who would use drugs.
Additionally, the Board does not believe
that even if he was in any way inclined to do so, he would take
the risk of using a controlled substance when he was only a year
away from attaining retirement eligibility.

The Board agrees with those individuals who

the Board concludes that all evidence

Based on the foregoing,
pertaining to or resulting from the allegation of drug abuse, to
include the NJP and administrative separation documentation,
should be removed from the record,
be made by setting aside the discharge of 11 August 2000 and
showing that Petitioner served on active duty until eligible to
transfer to the Fleet Reserve.

and further corrections should

RECOMMENDATION:

a. That Petitioner's naval record be corrected by removing all

references to the NJP of 13 June 2000, including but not
necessarily limited to the Court Memorandum  
July 2000.

(P601-7R) dated 17

_

4

b. That the record be further corrected by removing all

documentation pertaining to the administrative separation action
to include the proceedings of the ADB
taken against Petitioner,
and all exhibits and endorsements thereto.

C . That the record be further corrected to show that

Petitioner was not discharged on 11 August 2000 but continued to
serve without interruption until the date he was first eligible
to transfer to the Fleet Reserve and, on that date, was so
transferred.

d. 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.

e. That any material directed to be removed from Petitioner's

naval record be returned to the Board,
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.

together with this Report

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.

/fl>---F

ROBERT D. ZSALMAN
Recorder

ALAN'-E. GOLDSMIT
Acting Recorder

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

Reviewed and approved:

5

DEPARTMENT OF THE NAVY

OFFICE OF THE GENERAL COUNSEL

WASHINGTON,  

D.C. 

20350-1000

SEF 10 

foci

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

Subj:

AL RECORD OF

I have considered the recommendation 

(BCNR) that petitioner’s record be corrected to remove his Non-Judicial Punishment 
wrongful use of cocaine, set aside his administrative discharge based on this NJP and transfer
him to the Fleet Reserve. For the reasons stated below, the Board ’s recommendation as to the
appropriate relief is approved, but for reasons other than those stated by the BCNR.

(NJP) for

ofthe Board for Correction 

ofNaval Records

The BCNR based its recommendation in favor of relief on its belief that petitioner did not

wrongfully use cocaine. This determination was in turn premised on the 
service member with 19 years of otherwise unblemished service and within months of qualifying
for a 20-year retirement would not use cocaine.
unsupported by the facts of this case and contrary to the actual events that have occurred in
numerous other cases in the military.

I specifically reject this reasoning as

BCNR’s view that a

I am not satisfied, however, that the evidence in this case is sufficient to demonstrate that
the NJP and administrative discharge proceedings against the petitioner were free of legal error.
(2000), and its progeny, where scientific
Pursuant to United States v. Campbell, 52 M.J. 386 
evidence provides the sole basis to prove the wrongful use of a controlled substance, expert
testimony or some other form of evidence is required to provide a rational basis for concluding
the accused wrongfully used the illegal drug. The record in this case is devoid of any such proof.
Moreover, the stipulated testimony of a Navy chemist offered support for the petitioner ’s
claimed defense of unknowing ingestion. While I do not necessarily accept this claim, justice
requires that every element of a charged offense must be proven in order to sustain a punitive
action based on that charge. Accordingly, for the reasons stated above only, I find an error
warranting relief.