DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 

NAVY 

ANNEX

WASHINGTON DC 20370-5100

CRS
Docket No: 10826-02
11 September 2003

The Board also considered an advisory opinion 

on.a
from the Navy Environmental Health

Your allegations of error and

application for correction of your
provisions of title 10 of the United

This is in reference to your
naval record pursuant to the
States Code section 1552.
A three-member panel of the Board for Correction of Naval
Records, sitting in executive session, considered your
application on 30 July 2003.
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.
prior case, dated 1 July 1999,
Center, a copy of which is enclosed.
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.
The Board found that you reenlisted in the Navy on 21 September
2001 after more than  13 years of prior active service.
The
record reflects that you served well during these prior
enlistments, attaining the rate of petty officer second class
(SK2; E-5) and earning excellent to outstanding evaluations. You
also received two Navy Achievement Medals.
You received nonjudicial punishment (NJP) on 8 March 2002 for use
of cocaine based on a positive urinalysis.
imposed consisted of a forfeiture of $408.90 for seven days and a
reduction from SK2 to petty officer third class (SK3; E-4). On
13 March 2002 you appealed the NJP,
essentially contending that
the positive urinalysis could have been caused by your sexual
relationship with a woman who was using cocaine.
endorsement of 2 April 2002,
the officer in charge noted your
theoratical
theory of innocent ingestion but stated that  
possibility  was insufficient to convince me that the results of

The punishment

In his

"this 

male.@'

error."

Your appeal was denied on 24

and this recommendation was approved.

the ADB found no misconduct and

the urinalysis were in 
April 2002.
Subsequently, you were processed for administrative separation by
reason of misconduct due to drug abuse.
On 10 June 2002 an
administrative discharge board (ADB) met to consider your case.
The ADB considered evidence and testimony attesting to your
excellent performance of duty and exemplary behavior.
The ADB
also considered testimony that you kissed and had sexual
relations with your girlfriend the weekend before the urinalysis,
and she had used cocaine on the Wednesday or Thursday before that
Testimony was also received from the director of a Navy
weekend.
drug laboratory,
who said that your particular theory of innocent
ingestion was
"an extremely unlikely scenario." He also testified
'@I'm not sure that there is any level of cocaine that the
that 
female could take where there would be sufficient cocaine to be
passed on to the 
In this regard, it is significant that
the laboratory director assumed that your girlfriend used cocaine
during the weekend when, in fact,
she testified that she used it
earlier in the week, thus making it likely that much of the drug
was out of her system by the weekend.
Despite the foregoing testimony,
recommended retention,
Therefore, you continue to serve on active duty in the rate of
SK3.
The Board noted your contentions concerning the imposition of NJP
on 8 March 2002, especially the contention in your application,
in the NJP appeal and at the ADB about innocent ingestion.
However, the Board believed the testimony of the drug
laboratory's director to the effect that the scenario you
described would not have caused a positive urinalysis.
also noted that the NJP and the ADB are two separate proceedings,
and a favorable result at the latter does not invalidate the
former.
commanding officer's decision at NJP that you had used drugs was
reasonable, given the positive urinalysis; and since the ADB
considered other evidence that justified the conclusion of the
commanding officer, specifically,
the testimony of the director
of the Navy drug laboratory.
also noted paragraph three of the advisory opinion which states,
in part, that
transferred" by casual contact such as kissing to cause a
positive urinalysis result.
with the advisory opinion.
Accordingly, your application has been denied.
votes of the members of the panel will be furnished upon request.
It is regretted that the circumstances of your case
are such that
favorable action cannot be taken.
You are entitled
to have the

This is especially true in your case since the

"it is doubtful that enough cocaine could be

The Board

In reaching its decision, the Board

The Board saw no reason to disagree

The names and

2

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.
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,

Executive

Enclosure

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NAVY
DEPARTMENT OF THE 
NAVY ENVIRONMENTAL HEALTH CENTER

2510 WALMER AVENUE

NORFOLK, 

VIRGtNlA  23513-2617

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Commanding Officer, Navy 
Norfolk, VA
Chairman, Board for Correction of Naval Records, 2
Navy Annex, Washington, DC 20370-5100

E$vironmental Health Center,

INQUIRY INTO THE URINALYSI TEST RESULTS OF  
_ USN, 
(a) BCNR 
(b) NAVDRUGLAB Jacksonville ltr 5355 Ser 

ltr AEG:jdh Docket No: 816-99 of 21 Jun 99
00/1116 of

b

EX-QM1

(c) NAVDRUGLAB Norfolk ltr 12736 

09A/173 of

From:

:To:

Subj:

Ref:

28 Jun 99

12 Jul 94

101.

(d) Final Report of Dr.
(e) M.A. 

ElSohly, J. Analytical Toxicology, 15, 1991,

'of 25 May 95

The subject inquiry, reference (a), concerns a

1.
urinalysis test conducted at the Navy Drug Screening
Laboratory (NDSL), Norfolk, VA between 23 Nov 93 and 02 
93. Due to consolidation of Navy drug testing laboratories,
NDSL-Norfolk closed at the end of FY 95. The records for
NDSL-Norfolk were transferred to NDSL-Jacksonville for long
term storage. Reference (b) was provided which contains
copies of the testing data for the urine specimen in
question. After a thorough technical and administrative
review, the following is a synopsis of the test results for
the subject inquiry.

Dee

0285/02, SSN: 002-46-

In short, the urine specimen collected on 23 Nov 93,
assigned local batch/specimen number  
7672 was hand-carried the same day to NDSL-Norfolk. The
specimen was assigned laboratory accession number (LAN)
522873. The initial screening test by radioimmunoassay
(RIA) was performed on 29 Nov 93 and specimen 522873 tested
presumptive positive for cocaine metabolites. A second
portion of urine specimen 522873 was poured, screened a
second time by RIA on 01 
Dee 93, and tested presumptive
positive for cocaine metabolites. A third portion of urine
specimen 522873 was poured for the confirmation test. The

Subj: INQUIRY INTO THE URINALYSIS TEST RESULTS OF 

EX-QM1

 

USN,-

(GC/MS). The 

GC/MS analysis on 01 

Dee 93, of
identified specifically the cocaine

confirmation test involves the chemical extraction from the
urine matrix of the cocaine metabolite with the subsequent
analysis of the extract by gas chromatography/mass
spectrometry, 
urine specimen 522873,
metabolite, benzoylecgonine, at 136 ng/mL, above the 
cutoff concentration of 100 ng/mL. The test result for
522873 was reported back to the submitting unit on 02 
Dee
93 as confirmed positive for cocaine use. Upon request, a
fourth portion of urine specimen 522873 was later poured
and re-analyzed by 
specimen 522873 reconfirmed the presence of the unique
cocaine metabolite, benzoylecgonine. All four tests (2-RIA
and 
control samples and identification of a positive specimen
by 

2-GC/MS) met all acceptance criteria for quality

GC/MS on 06 Jan 94. The retest of urine

DOD/DON standards.

DOD

2.
The fact that urine specimen 522873 was tested during
the time period when sporadic alterations of only RIA data
occurred at NDSL-Norfolk, does not invalidate the testing
results. The reports of the exhaustive internal
investigation, reference(c),
forensic toxicologist, Dr. Huestis, reference (d), indicate
that the testing batch containing 522873 was not involved
in any quality control or other RIA data alterations. More
importantly, both the 
confirmation retest consistently identified the presence of
the cocaine metabolite, benzoylecgonine, meeting all
scientific acceptance criteria.

GC/MS confirmation test and  

and from the independent

GC/MS

7

Reference (a) indicated that the subject individual had

3.
an alleged casual contact of cocaine through kissing his
f
girlfriend. It is doubtful that enough cocaine could be
transferred to substantiate the concentration confirmed of
the cocaine metabolite, benzoylecgonine, in the subject's
urine the following day. Studies such as reference (e)
indicate that casual contact of cocaine will not produce
cocaine metabolite levels above the 
cutoff. It is highly improbable that the alleged scenario
given by the subject individual could have resulted in a
benzoylecgonine level high enough to reach the 

DOD screening test

DOD cutoff.

I
4.
pertaining to the involved laboratory individuals returning

As clarification, paragraph 3 of reference (a)

A

2

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Subj: INQUIRY INTO THE URINALYSI TEST RESULTS OF  

EX-QMl

 _r  

USN,

to the laboratory to work, does not apply to the subject
inquiry. The ex-service member's specimen was tested prior
to the discovery of the sporadic RIA data alterations at
NDSL-Norfolk. To reiterate,
the urine specimen 52.2873 in
question was not tested in a batch where the initial or
second RIA test had data alterations. The design of the
drug-testing program includes multiple testing by at least
two different testing methods of presumptive positive
specimens to preclude the false reporting of a specimen as
confirmed positive for drugs.

5.
Point of contact, M S
Testing Program Manager,
462-5515 or DSN 253-5515.

can be reached at commercial (757)

Deputy Navy Drug

By direction

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