DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 5S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
TUR
Docket No: 8074-12
15 October 2012
From: Chairman, Board for Correction of Naval Records
TO Secretary of the Navy
Ref: ta) 1060 U.S.C. LS52
Encl: (1) DD Form 149 with attachments
(2) Case summary
(3) 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 that his naval record be corrected by removing all
references to the nonjudicial punishment (NOP) imposed on 18
August 2011 and the fitness report for the period From 16-19
August 2011. He further requested removal, from his official
military personnel record (OMPF), any and all derogatory
documentation (e.g., investigative reports, administrative
discharge board (ADB) proceedings, etc.) surrounding the
circumstances of the NUP, specifically, wrongful use of a
controlled substance.
2. The Board, consisting of Messrs. Dixit, Pfeiffer, and Whalen,
reviewed Petitioner's allegations of error and injustice on 3
October 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. In addition, the
Board considered the advisory opinion (AO) furnished by the
Headquarters Marine Corps Military Justice Branch, Judge Advocate
Division (JAM) dated 14 September 2012.
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 placed an order for and received, without
complete and proper research, some supplements that he was
snformed were legal. Upon receipt of the supplements, he noticed
that the supplements were “for animal use only” and found to be
“steroids.” Nevertheless, upon conclusion of an investigation
regarding the purchase of steroids, his commanding officer
concluded that the foregoing facts were the basis for imposition
of NIP. Subsequently, on 18 August 2011, Petitioner received NUP
for wrongful possession on a scheduled II controlled substance,
specifically, methadrostenol. The punishment imposed was a
$2,620 forfeiture of pay. Asa result of this NJP, he also
received an adverse fitness report documenting the offense.
d. Subsequently, Petitioner submitted a request for a
conditional waiver to the discharge authority which was denied.
administrative separation. After consulting with legal counsel
he elected his right to have his case presented to an ADB. On 12
January 2012 an ADB determined that by a preponderance of
evidence, the acts or omissions alleged did not constitute
misconduct, and recommended retention in the Marine Corps.
During these proceedings, Petitioner again stated that he made
the mistake of not properly researching the supplements he
purchased and that he honestly thought that they were legal.
e. The enclosed aforementioned AO from JAM states, in part,
that the NUP and fitness report should be removed from the
record, in part, because Petitioner was not guilty of wrongful
(knowing and willful) possession of a controlled substance as
defined regulatory guidelines because he actually believed the
supplements he purchased were “legal” to purchase, possess,
and/or use. The AO also states that the commanding officer (who
imposed NJP) later indicated that Petitioner’s intentions were to
purchase legal supplements and as such did not support his
earlier findings to impose it on 18 August 2011.
CONCLUSION:
Upon review and consideration of all the evidence of record, and
especially in light of the AO from JAM, the Board concludes that
Petitioner's request warrants favorable action. In this regard,
the Board concludes that since the commanding officer and an ADB
found that Petitioner did not knowingly and willfully possess a
controlled substance, the NUP and all references in his record
regarding it should be removed or obliterated. In this regard,
any and all documents, to include, but not limited to, the unit
punishment book entry, administrative remarks entry, fitness
reports, investigative materials/documents, and administrative
separation documentation, etc., should be expunged from the
record.
In view of the foregoing, the Board finds the existence of an
error or injustice warranting the following corrective action.
RECOMMENDATION:
a. That Petitioner's naval record be corrected by totally
obliterating or removing the 18 August 2011 NUP, the fitness
report for the period from 16 to 19 August 2011, and all other
references thereto.
b. That any and all materials 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.
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.
Te eS , fed
W. DEAN PFEIFFER
Fxecutive Director
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