DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
TAL
Docket No: 5066-11
10 February 2012
From: Chairman, Board for Correction of Naval Records
Te: Secretary of the Navy
Ref: (a) 10 U.S.C. 1552
DD Form 149 with attachments
HQOMC MMER/PERB memo dtd 11 Nov 11
Encl: (1)
2)
3) Case summary
4)
5)
HOMC JAM1 memo dtd 28 Jul 11
Subject's naval record (CD)
1. Pursuant to the provisions of reference (a), Petitioner, a
member of the Marine Corps, filed enclosure (1) with this Board
requesting the removal of all adverse material from his Official
Military Personnel File (OMPF) regarding a nonjudicial
punishment (NJP) dated 2 September 2010 and to be reinstated to
paygrade E-5. He also requested that the adverse fitness report
for 15 May to 2 September 2010 be removed from his record. As
explained in enclosure (2) the Headquarters Marine Corps (HOMC)
Performance Evaluation Review Board has directed its removal.
2. The Board, consisting of Mr. Genteman, Mr. Green and Mr.
Storz, reviewed Petitioner's allegations of error and injustice
on 2 February 2012 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 Marine Corps on 23 May 2005
and is currently serving on active duty.
d. Petitioner received NUP on 2 September 2012, for one
instance of wrongful use of Oxycodone, a controlled substance.
Petitioner denied that he had wrongfully used Oxycodone. He
claimed that he had a valid prescription for Percocet and used
it shortly before the urinalysis. The Percocet was prescribed
to relieve the pain he was suffering from a broken bone in his
foot. The punishment imposed was reduction in paygrade to E-4
from E-5, and forfeiture of $1,099 pay per month for two months.
The forfeiture was suspended. He did not appeal the NUP but did
request that his commanding officer to set it aside due to his
innocence.
e. He was notified that he was to be processed for
administrative separation for drug abuse. He requested a
hearing before an administrative discharge board (ADB).
Petitioner’s defense counsel also requested that the commanding
officer set aside the NUP due to innocence. The commanding
officer denied the request. On 6 April 2011 the ADB heard the
case. Petitioner submitted a letter from a physician's
assistant at the Department of Orthopedic Surgery, confirming
that he had a broken bone in his foot and that he had been
prescribed Percocet for pain to use as needed. The ADB found
that the government had failed to prove wrongful use of a
controlled substance and recommended retention.
f. An advisory opinion (AO) from the Military Law Branch of
HOMC (enclosure (4)) recommends that Petitioner’s request to
remove his NUP be granted. In this regard the AO states, in
part, as follows: that the use of a controlled substance
properly prescribed is not a crime. The AO notes that it is
clear that Petitioner’s commanding officer did not properly
investigate this matter, because if he had the medical
directions to the Petitioner would have been provided to him
prior to imposing NUP.
The AO recommends that his request to remove all documentation
regarding the 2 September 2010 NJP from his OMFP be granted.
CONCLUSION:
Upon review and consideration of all the evidence of record, and
especially in light of enclosure (4), the Board concludes that
Petitioner's request warrants favorable action.
RECOMMENDATION :
a. That Petitioner's naval record be corrected by removing
the NIP dated 2 September 2010 and reinstate paygrade him to E-
Bi,
b. 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.
c. 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. Pursuant to Section 6(c) of the revised Procedures of the
Board for Correction of Naval Records (32 Code of Federal
Regulations, Section 723.6(c)) 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
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 Regulation, 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), has been approved by the Board on
behalf of the Secretary of the Navy.
Wo Naa
W. DEAN P
Executive
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