DEPARTMENT OF THE NAVY
BOAR0 FORCORRECTION OF NAVALRECORDS

2 

NAVY 

ANNEX

WASHINGTON DC 20370-5100

CRS
Docket No: 8895-02
10 September  2003

From: Chairman, Board for Correction of Naval Records
To:
Subj: REVIEW OF NAVAL RECORD OF

Secretary of the Navy

Lhz
(a) 10 U.S.C. 1552

Ref:
Encl: (1) DD Form 149 w/attachments

(2) Case Summary
(3) Subject's naval record

1. Pursuant to the provisions of reference (a), Petitioner, an
enlisted member of the Marine Corps, applied to this Board
requesting, in effect, that his naval record be corrected by
removing the 9 September 1999 nonjudicial punishment (NJP) and
certain derogatory service record entries.

ard, consisting of Mr.
reviewed Petitioner's a
on 30 August 2003 and, pursuant to its regulations,

Ms.
ion

nd Mr.

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. Enclosure (1) was filed in a timely manner.
c. On 18 February 1999 Petitioner reenlisted in the Marine
Corps for four years as a corporal (CPL; E-4), after more than
three years of prior active service.
apparently still recovering from a gunshot wound he received on
13 June 1998.

At that time, he was

d. On 12 May 1999 Petitioner's urine sample tested positive
for marijuana, but no disciplinary action was taken.
9 September 1999 he received NJP for absence from his appointed
, and failure to
place of duty, a physical training formation 

However, on

obey a lawful order to do sit-ups.
consisted of forfeitures of $714 per month for two months and
restriction and extra duty for 45 days.

The punishment imposed
He did not appeal.

e. On 9 September 1999 an entry was made on llc of

Petitioner's record concerning treatment for substance abuse.
The same page also contains a counseling entry, dated 22
September 1999, that referenced the offenses for which he
received NJP offenses,
not submit a rebuttal to either entry.

as well as his use of marijuana.

He did

f. Subsequently, Petitioner was processed for separation by

reason of misconduct due to drug abuse.
1999, an administrative discharge board (ADB) found no misconduct
and recommended that Petitioner be retained in the Marine Corps.
This action was based on the 
urinalysis of 12 May 1999 resulted from Petitioner's innocent
ingestion of marijuana.

ADB's belief that the positive

However, on 17 December

.

Also on 17 December 1999

"SNM retained in the
thegrecord  that noted the ADB and
U.S. Marine Corps by the Commanding General (CG), Marine Corps
Base, Camp Lejeune, North Carolina on 

991217...."

an entry was made on page lld of
stated

h. On 1 February 2000 Petitioner was promoted to sergeant

(SGT; E-5). However, on 11 May 2000 the CG submitted a letter to
the CG, 2nd Marine Division,
stating that he disagreed with the
findings of the ADB and recommending that the case be forwarded
to the Secretary of the Navy in order that Petitioner could be
However, documentation in the record reflects that
discharged.
he was retained in the Marine Corps in accordance with the
recommendation of the ADB.

i. In his application, Petitioner contends that the NJP and
related entries are unfair because his ability to perform
physical training was limited by his ongoing recovery for the
gunshot wound.
points out that he was "exonerated and retained" by the ADB.

Concerning the entry pertaining to drug abuse, he

j- An advisory opinion from Headquarters Marine Corps, dated

18 December 2002, recommends that relief be denied.
In this
regard, the opinion notes that no legal error occurred in the
imposition of Petitioner's NJP.
believes that the entries on page llc are correct.
contrary finding of the ADB does not negate the drug entry or the
counseling entry on page llc, since confirmed incidents of
illegal drug involvement must be recorded on a page 11.
opinion notes but does not discuss the entry on page lld noting
Petitioner's retention in the Marine Corps.
CONCLUSION:

Additionally, the opinion

Further, the

The

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The entry is erroneous,

ADB's recommendation.

Since the ADB is not

since the CG clearly recommended

ADB's recommendation for

However, the advisory opinion essentially

Further, the entry mentions the ADB, which is

Upon review and consideration of all the evidence of record, the
Board concludes that Petitioner's request warrants partial
relief.
In this regard, the Board for the most part concurs with
the advisory opinion.
overlooked the page lld entry of 17 December 1999 which noted the
ADB and stated that the CG retained Petitioner in the Marine
Corps.
discharge and did not concur with the 
retention.
argueably inappropriate since the ADB proceedings are not placed
in the record if an individual such as Petitioner is retained in
accordance with the 
entered in the record, the Board believes no mention of it should
be made in any service record entries.
Accordingly, the page lld
entry of 17 December 1999 should be removed from Petitioner's
record.
In view of the foregoing,
injustice warranting the following corrective action.
RECOMMENDATION:

the Board finds the existence of an

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

17 December 1999 entry on page lld of the record.

b. That no further relief be granted.
C . 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.

d. That any material directed to be removed from Petitioner's
for retention in a confidential file
with no cross reference being made a

naval record be returned to the Board,
this Report of Proceedings,
maintained for such purpose,
part of Petitioner's naval record.
4. It is certified that a quorum was present at the Board's
review and deliberations,
complete record of the Board's proceedings in the above entitled
matter.

and that the foregoing is a true and

together with a copy of

ROBERT D. ZSALMAN
Recorder

Acting Recorder

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5. Pursuant to the delegation of authority set out in Section
6(e) of the revised Procedures of the Board for Correction of
Naval Records (32 Code of Federal Regulations, Section 723.6(e))
and having assured compliance with its provisions, it is hereby
announced that the foregoing corrective action, taken under the
authority of reference (a),
behalf of the Secretary of the Navy.

has been approved by the Board on

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