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NAVY | BCNR | CY2007 | 11133-07
Original file (11133-07.rtf) Auto-classification: Approved
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100


 SMW
 Docket No: 11133-07
21 May 2008
From:    Chairman, Board for Correction of Naval Records
To:      Secretary of the Navy
Subj:    REVIEW OF NAVAL RECORD



Ref:     (a) 10 U.S.C. 1552
End:     (1) Case Summary with advisory opinion
                   (2) Subject’s naval record
1.       Pursuant to the provisions of reference (a) , Petitioner, a member
 of the active Navy Reserve, applied to this Board requesting to
remove the nonjudicial punishment (NJP) dated
16 July 2006, and to show that he was not discharged on
30 September 2006, but continued to serve on active duty.
2.       The Board, consisting of Mr. and reviewed Petitioner’s allegations of error and injustice on 7 May 2008, 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.       Petitioner’s application was filed in a timely manner.
c.       On 25 March 2005, Petitioner reenlisted in the active Navy Reserve at age 27 after two prior periods of honorable service and was subsequently promoted to petty officer first class. He then served without incident until 22 April 2006, when a urinalysis tested positive for cocaine. At that time he was preparing for a voluntary deployment to Iraq.
d.       On 11 May 2006, Petitioner’s commanding officer initiated administrative separation by reason of misconduct due to drug abuse. In connection with this processing, Petitioner acknowledged that separation could result in an other than honorable (0TH) discharge,
 elected counsel and to have his case heard by an administrative discharge board (ADB).
e.       On 16 July 2006, Petitioner had NJP for use of cocaine. Punishment included reduction in rank to pay grade E-5.
f.       On 4 August 2006, Petitioner had an independent hair drug test conducted that would detect most drug use within 90 days or more. The hair test found no evidence of drug use.
g.       On 29 August 2006, an ADB convened. Record of the ADB proceedings show that evidence considered included Petitioner’s hair drug test results and deficiency reports for the drug screening. Record of the ADB proceedings also shows that a representative from the Navy Drug Laboratory testified via telephone and in essence stated that while the Navy Drug Laboratory screening does make mistakes, they are very rare, and are usually because the samples are mislabeled. He further stated that hair drug testing is a good way of testing for drugs with chronic users, but for occasional and sporadic users, the drug does not stay in their system long enough for it to be detected in their hair and while it is a useful test, it does not invalidate the urinalysis. The record of the ADB proceedings also shows that Petitioner’s counsel asked the Navy Drug Laboratory representative why one of the samples in the batch that had Petitioner’s sample in it did not include an accession number. The representative responded by stating that the specific sample never arrived with the rest of the batch like it was supposed to, and it was an error on the unit’s part. When further questioned of the validity of Petitioner’s urinalysis, the lab representative stated that the lab does not release positive results unless they are very confident that the tests were conducted properly. The ADB concluded that misconduct due to drug abuse had occurred and recommended a general discharge. On 6 September 2006, Petitioner’s commanding officer concurred with the ADB’s recommendation. On
 30 September 2006, Petitioner was separated with a general discharge by reason of misconduct due to drug abuse and assigned an RE-4 reenlistment code.
h.       On 7 November 2007, the Board corrected Petitioner’s naval record to show that he was honorably discharged due to the best interest of the service and assigned an RE-l reenlistment code, vice the general discharge by reason of misconduct due to drug abuse and RE-4 reenlistment code that was actually issued on 30 September 2006.
1.       In his application, Petitioner states that the Board’s previous decision on 7 November 2007, stated 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 materials be added to the record in the future”. He further states that based on that statement, his NJP that had occurred due to drug abuse charges should be eliminated and his E-6 pay grade restored; therefore, he requests that he be

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reinstated to full active duty with no time lost in the Navy and paid compensation of wages since 30 September 2006.
j.       With his previous application dated 11 January 2007, and considered by the Board on 7 November 2007, Petitioner provided seven Navy Drug Screening Laboratory Memorandums for the Record and an adverse personnel action for a technician, that occurred during the period 25 January to 8 September 2005, which documented errors and deficiencies that included mislabeling samples, discrepancy of assaying screening batches, heat setting too high for label equipment, re-pour samples labeled incorrectly, accessioning relabeling problems, cross contamination of samples, and a one day suspension of a technician for failure to follow instructions. He also provided his hair drug test results of 8 August 2006, which found no evidence of drugs, favorable letters of recommendation, two Navy and Marine Corps Achievement Medal certificates, a 2003 Junior Sailor of the Quarter Award, several letters of commendation, qualification certificate as a P-3 Enlisted Aviation Warfare Specialist, and performance evaluations that show he was consistently rated as above or exceeding standards.
k.       Attached to enclosure (1) is an advisory opinion from the Commanding Officer, Fleet Logistics Support Squadron FOUR SIX, regarding the Board’s previous decision, back pay, and removal of Petitioner’s NJP, which states, in part, as follows:
Forwarded, concurring with a change in discharge classification and benefits to [sic] Honorable with a [sic] RE-l code.
I do not recommend [Petitioner] receive back pay [sic] for the time of his discharge. Further, I do not concur with removal of NJP.
CONCLUSION:
Upon review and consideration of all the evidence of record, the Board concludes that Petitioner’s request warrants relief. Specifically, the Board finds that sufficient evidence exists to support Petitioner’s contention of innocence. 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. In addition, the Board considers the Board’s previous decision and Petitioner’s overall service record that included almost 11 years of service in which he established technical and professional credibility in the Navy and attained the rank of petty officer first class. Therefore, the Board concludes that the NJP, administrative separation documents and fitness report ending 29 September 2006, should be removed, and that he be reinstated on active duty in the active Navy Reserve and as such be paid all back wages and allowances with no time lost shown.

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RECOMMENDATION: 

a.       That Petitioner’s naval record be corrected by removing the NJP dated 16 July 2006, and the punishment imposed.
b.       That Petitioner’s naval record be further corrected to show that he was not discharged on 30 September 2006, but continued to serve on active duty in the active Navy Reserve and as such be paid all wages and allowances with no time lost.
c.       That Petitioner’s naval record be further corrected by removing the administrative separation documents and ADB proceedings from his naval record.
d.       That Petitioner’s naval record be further corrected by reinstating him on active duty in the active Navy Reserve.
e.       That Petitioner’s naval record be corrected by removing therefrom the following fitness report and related material:
                  Period   of       Report
         Date of Report   Reporting Senior From             To
         26Sep06  16Jul06           29Sep06
f.       That there be inserted in Petitioner’s naval record a memorandum in place of the removed fitness report containing appropriate identifying data concerning the report; that the memorandum state that the report has been removed by order of the Secretary of the Navy in accordance with the provisions of federal law and may not be made available to selection boards and other reviewing authorities; and that such boards may not conjecture or draw any inference as to the nature of the report.
g.       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.
h.       That any material directed to be removed from Petitioner’s 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.
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        BRIAN J. GEORGE
Recorder         Acting Recorder

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


                                                               W. DEAN PFEIFFER
                                                               Executive Director

Reviewed and approved:





RobertT. Call
 Assistant General Counsel
M anpower and Reserve Affairs

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