Search Decisions

Decision Text

NAVY | BCNR | CY2006 | 08398-06
Original file (08398-06.rtf) Auto-classification: Approved
DEPARTMENT OF THE NAVY
 BOARD FOR CORRECTION OF NAVAL RECORDS 2 NAVY ANNEX
 WASHINGTON DC 2O37O~51OO
CR S :
Docket No: 8398-06
20 February 2007








A three-member panel of the Board, sitting in executive session, considered your application and a majority recommended that your naval record be corrected as set forth in the attached report dated 1 February 2007. In accordance with current regulations, the Assistant Secretary of the Navy for Manpower and Reserve Affairs conducted an independent review of the Board’s proceedings and approved the minority recommendation that your application be denied.

You are advised that reconsideration of your case will be granted only upon the presentation of new and material evidence not previously considered by the Board and then, only upon the recommendation of the Board and approval by the Assistant Secretary.

It is regretted that a more favorable reply cannot be made.





Sincerely,




Enclosure









DEPARTMENT OF THE NAVY
OFFICE OF THE ASSISTANT SECRETARY
(MANPOWER AND RESERVE AFFAIRS)
1000 NAVY PENTAGON
WASHINGTON, D.C. 20350.1000

 February 12, 2007
MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL RECORDS
          Subj: BCNR PETITION OF    -~

The recommendation of the Board for Correction of Naval Records, dated February 1, 2007, is disapproved. I have considered this petition under the provisions of 10 U.S.C. § 1552 and determined that the Petitioner’s request does not warrant the partial relief recommended, that is, he is not entitled to have his naval record corrected to show he was reconitnended for reenlistment when he was discharged on May 22, 2006.
The record shows that on September 29, 2005, the Petitioner had a positive urinalysis for amphetamine. At the time the Petitioner stated that another sailor gave him the unauthorized prescription drug during a drill weekend. The Petitioner waived all of his procedural rights, including his right to an administrative discharge board, and requested of his command the more favorable general discharge under honorable conditions and an RE-3 reenlistment code. As requested, the Navy discharged the Petitioner with a general discharge by reason of misconduct due to drug abuse on May 22, 2006, but it assigned him an RE-4 reenlistment code.
Before the Board the Petitioner contends that, while in a drill status, he mentioned to another sailor that he was having difficulty focusing on his equipment. This sailor remarked that Petitioner may have attention deficit disorder (ADD) and offered him prescription pills that she was taking for ADD. The Petitioner acknowledges that he knew it was illegal for him to take the pills, but he believed that concentrating on his job was the higher priority. The Petitioner also presented the Board with evidence that he has been diagnosed with ADD and has been prescribed the medication the other sailor had given him.
A majority of the Board acknowledges that the Petitioner took an illegal drug, but credits the Petitioner’s argument that he only did it to enhance his military performance. In its view, this mitigates the Petitioner’s misconduct and is deserving of the partial relief of a reenlistment recommendation. (The Petitioner had also sought reinstatement and changes to the characterization and reason for his discharge.) I disagree.
As the minority notes, the Petitioner admits that his action was wrong and that he had waived his right to an administrative discharge board. In other words, he did not avail himself of the opportunity to plead his case while he was on active duty before the forum with the more demanding and comprehensive adversarial procedures established for just this purpose. Instead, the Petitioner opted to request that his command discharge him with a higher characterization of service, which was granted, and for the relatively informal, effectively ex parte proceedings of the Board. Under these circumstances, there is no injustice in not permitting the Petitioner to benefit from avoiding the more appropriate forum for adjudicating his admitted wrongdoing.
 Subj:    BCNR PETITION or
The requested and recommended relief is denied.


ROBERT T. CALl
 Assistant General Counsel
 (Manpower and Reserve Affairs)
          4’,      *




 2
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

 WASHINGTON DC 2O37O~ 5 lOc_I~RS No: 8398—06 2 NAVY ANNEX

February 2007
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 _~ecord
1.       Pursuant to the provisions of reference (a), Petitioner an enlisted member of the Navy Reserve, applied to this Board requesting reinstatement or changes in the characterization of his service and reason for separation, and that he be recommended for reenlistment as of 22 May 2006.
2.       The Board, consisting of Messrs.
 reviewed Petitioner’s allegations of error and injustice on 4 January 2007 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.       Enclosure (1) was filed in a timely manner.
C.       Petitioner enlisted in the Navy Reserve on 21 May 2003 in the advanced pay grade program after four years of prior active service in the Navy. He then continued to serve satisfactorily for more than two years, advancing in rate to second class petty officer (MR2; E-5).
d.       The record reflects that on 29 September 2005 Petitioner had a positive urinalysis for amphetamine. At the time of the urinalysis he had stated that he had been given an unauthorized prescription drug by another Sailor on a drill weekend.
e.       After Petitioner waived all of his procedural rights, including the right to an administrative board, on 5 February 2006 his commanding officer recommended a general discharge by reason of misconduct due to drug abuse. He was so discharged on
 22 May 2006. At that time, he was assigned an RE-4 reenlistment code.
f.       Petitioner contends that while in a drill status, he found that he could not focus on the equipment that he was operating and mentioned his problem to another Sailor. The other Sailor remarked that maybe he had attention deficit disorder (ADD) and offered him prescription pills that she was taking for ADD. As a petty officer, he knew it was illegal for him to accept the pills but he believed that concentrating on his job was a higher priority. He argues that he acknowledged his actions when he took the urinalysis. He also presents evidence that he has now been diagnosed with ADD and been prescribed the drug that the other Sailor gave him.
g.       Applicable regulations state that an other than honorable discharge is normally approved when an individual is discharged due to misconduct due to drug abuse. Further, a recommendation against reenlistment is required when an individual is discharged for misconduct.
MAJORITY CONCLUSION:

Upon review and consideration of all the evidence of record, a majority of the Board, consisting of Mr. Grover and Mr. Bourgeois, concludes that Petitioner’s request warrants partial relief. In this regard, the majority agrees that Petitioner took the illegal drugs but only in order to enhance his military performance. Although, this does not mean that he should be reinstated or have his characterization and reason for discharge changed, the majority does believe that the circumstances of the drug use mitigate his misconduct and that Petitioner should be recommended for reenlistment.

MAJORITY RECOMMENDATION:

a. That Petitioner’s naval record be corrected to show that he was recommended for reenlistment on 22 May 2006 vice not recommended.

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
          2
 naval record be returned to the Board, together with a copy of 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:

The minority member of the Board, Mr. Hess, agrees with the majority of the Board that Petitioner’s requests for reinstatement or changes in the characterization of service and reason for separation should be denied. Nevertheless, he disagrees with the majority’s belief that a military member who knowingly took drugs, fully aware that such action was wrong, should be given a second chance. Mr. Hess believes that since Petitioner waived his administrative discharge board and chose not to request retention in this forum, he should not be heard to argue to the Board that he should be recommended for retention. Otherwise, there is no reason for an administrative discharge board to consider a case, and petitioners will surely opt for the informal exparte proceedings of this Board rather than the more demanding and comprehensive procedures of an administrative discharge board.

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 F. GOLDSMITH
Recorder         Acting Recorder


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




Reviewed and approved:


 Robert T. Call
 Assistant General Counsel
Manpower and Reserve Affairs)








Similar Decisions

  • NAVY | BCNR | CY2007 | 03404-07

    Original file (03404-07.rtf) Auto-classification: Approved

    Documentary material considered by the Board consisted of the enclosures, naval records, and applicable statutes, regulations and policies.3. That Petitioner’s naval record be corrected to show that on 27 March 2007 Petitioner was issued an RE-i reenlistment code vice the RE-4 reenlistment code actually assigned on that date.b. That a copy of this report of proceedings be filed in Petitioner’s naval record.c.

  • NAVY | BCNR | CY2002 | 09221-02

    Original file (09221-02.pdf) Auto-classification: Approved

    % Pursuant to the provisions of reference (a), Petitioner, a 'The Board, consisting of Messrs. reviewed Petitioner's all 1. former enlisted member of the Marine Corps, filed an application with this Board requesting that the characterization of his discharge be changed. h. On 19 January 1971, while serving in Vietnam, Petitioner submitted a written request for an undesirable discharge for the good of the service to avoid trial by court-martial for a six day period of UA, and disobeying a...

  • CG | BCMR | Discharge and Reenlistment Codes | 2009-191

    Original file (2009-191.pdf) Auto-classification: Denied

    The ASB stated that if Coast Guard policy had any flexibility to allow retention of a member following a drug incident, the board would have recommended his reten- tion on active duty. The fact that the command later took action against the applicant after receiving evidence that he was accepting and filling prescriptions for opioid drugs without informing the prescribing physician of his addiction does not shock the Board’s sense of justice.7 The applicant alleged that his discharge was...

  • NAVY | BCNR | CY2001 | 06158-01

    Original file (06158-01.doc) Auto-classification: Approved

    g. A Navy pharmacologist submitted a report to the ADB in which she stated that both marijuana and hemp will produce the metabolite THC. 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. The foregoing report of the Board is submitted for your review and action.

  • NAVY | DRB | 2015_Navy | ND1500289

    Original file (ND1500289.rtf) Auto-classification: Denied

    The majority of board members at the NDRB view this as a validation of the presumption of regularity in the findings resulting from the Applicant’s sample as urinalysis specimens arriving at a Navy Drug Screening Laboratory (NDSL) are inspected for container damage or evidence of tampering, with particular attention to the condition of the box seals, which should be intact with the command’s Urinalysis Program Coordinator’s signature printed across the taped box seams. Summary: After a...

  • NAVY | BCNR | CY2001 | 08162-00

    Original file (08162-00.pdf) Auto-classification: Approved

    Pursuant to the provisions of reference (a), Petitioner, a former enlisted member of the Navy, Board requesting, in effect, by changing the RE-4 reenlistment code assigned on 28 December 1999. that his naval record be corrected filed enclosure (1) with this 2. chancel' since he says that he was told that he could He requests a f. With his application, Petitioner has submitted a statement from a recruiter with whom he is now working, who points out that at the time of Petitioner's separation...

  • NAVY | BCNR | CY2007 | 03338-07

    Original file (03338-07.rtf) Auto-classification: Approved

    The Board, consisting of reviewed Petitioner’s allegations of error and injusticeon 29 April 2008 and, pursuant to its regulations, determined that the corrective action indicated below should be taken on the available evidence of record. Based on the positive urinalysis, he was processed for an administrative separation from the Navy. That Petitioner’s naval record be corrected to show that on 21 August 2006 he was separated from the Navy by reason of erroneous entry and was assigned an...

  • NAVY | BCNR | CY2007 | 11133-07

    Original file (11133-07.rtf) Auto-classification: Approved

    Record of the ADB proceedings show that evidence considered included Petitioner’s hair drug test results and deficiency reports for the drug screening. In this regard, the Board finds that the documented deficiencies and errors in the testing of samples that occurred at the Navy Drug Laboratory and the error that occurred by the command’s urinalysis coordinator were sufficient to invalidate it. That Petitioner’s naval record be further corrected by removing the administrative separation...

  • NAVY | BCNR | CY2001 | 08650-00

    Original file (08650-00.pdf) Auto-classification: Approved

    Pursuant to the provisions of reference (a), Petitioner, a former enlisted member of the Navy, Board requesting, in effect, by changing the RE-4 reenlistment code assigned on 25 September 2000. that his naval record be corrected filed enclosure (1) with this McPartlin, and Ms. 2. September 2000, the recruit division commander also recommended By letter of 7 in retention, citing his demonstration of Commitment.W lloutstanding job on his duties," and his '@the Navy core values of Honor,...

  • ARMY | BCMR | CY2006 | 20060013357C071029

    Original file (20060013357C071029.doc) Auto-classification: Denied

    Scott W. Faught | |Member | The Board considered the following evidence: Exhibit A - Application for correction of military records. The applicant’s discharge packet is not available. However, neither his discharge packet nor evidence of what medication he was taking (in particular, the medication he stated a doctor said should never have been given to him) that could have triggered a positive urinalysis is available.