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Docket: 1360-13
18 February 2014

From: Chairman, Board for Correction of Naval Records
TOs Secretary of the Navy

Subj]: REVIEW OF NAVAL RECORD ICO

Ref: la) Title 10: U.S.¢. 1552
Encl: (1) DD Form 149 w/attachments

(2) NDRB Decisional Document docket No. MD05-01153
(3) NDRB Decisional Document docket No. MD11-00775
(4) HOMC MEMO MMER/RE undtd
(5) HOMC Memo 1070 JAM2 dtd 27 August 2013

1. Pursuant to the provisions of reference (a} Subject,
hereinafter referred to as Petitioner, filed enclosure (1)
with this Board requesting, in effect, that the applicable
naval record be corrected that his reenlistment code be
changed to allow him to reenlist in the military, that he
be reinstated to the rank of Lance Corporal (LCpl), that
his security clearance in the ordnance field be reinstated,
and that he be given credit for the time unserved on his
contract as a result of his administrative separation. He
contends that the Naval Discharge Review Board (NDRB) found
that he did not knowingly use marijuana which was the basis
for his demotion to Private First Class (PFC) and his
subsequent administrative separation. NDRB voted 3-2 to
upgrade the characterization of Petitioner’s service to
honorable and voted 4-1 to change the narrative reason to
Secretarial Authority.
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2. The Board, consisting of Mr. 4saiman, Mr. George, ano

Mr. Ruskin, reviewed Petitioner’s allegations of error an
injustice on 10 February 2014 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 recoras, 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. On 11 February 2004 Petitioner provided a urine
sample that tested positive for Tetrahydrocannabinol (THC).

Enclosure (2)

c. On 2 March 2004 Petitioner was examined at Naval
Hospital Camp Pendleton and stated that he unknowingly ate
some brownies laced with marijuana. Enclosure (2)

 

a. On 22 March 2004 Petitioner was found guilty by
his commanding officer at non-judicial punishment (NJP)
proceedings of wrongfully using a controlled substance.
Petitioner was awarded reduction to PFC, forfeiture of
$668.00 per month for 2 months, 45 days restriction and 45

days extra duty. Petitioner did not appeal the NUP.
Enclosure (2)

e, On 24 March 2004 Petitioner was notified that his

commanding officer intended to process him for
administrative separation. Petitioner waived his Tien te
appear before an administrative discharge board. Enclosure

(2)

f. On 29 May 2004 Petitioner’s commanding efiicer
recommended him for administrative separation by reason of
misconduct due to drug abuse. Enclosure (2)
g. On 18 August 2004 the Commanaer, 5 Maraite
Aircraft Wing, directed that Petitioner be separated by
reason of misconduct due to drug abuse with an other than
honorable characterization of service. Enclosure (2)

h. On 23 August 2004 Petitioner was so discharged.

ta

BuclLusure (2)

i. On 28 June 2005 NDRB conducted a review of
Petitioner’s discharge and found that an upgrade was not
warranted. Enclosure (2)

}. On 3 February 2011 Petitioner filed a request for
a personal appearance with NDRB. Enclosure (3)

k. On 27 March 2012 Petitioner personally appeared
before NDRB and testified under oath. NDRB then determined
that Petitioner did not knowingly use marijuana and
therefore, there was no valid basis to support his
separation for misconduct. Petitioner was granted a
discharge upgrade to honorable and a change in the reason
for discharge to Secretarial Authority. Enclosure (3)

h. In correspondence attached as enclosure (4), the
office having cognizance over the subject matter addressed
in Petitioner’s application pertaining to his reentry code
noted that at the time of Petitioner's original discharge,
he was provided the appropriate reentry code of RE-4B.

i. As a result of the correspondence attached as
enclosure (4), an additional advisory opinion was requested
to address the legal aspects of the NDRB decision which
determined that the Petitioner’s discharge for misconduct
was erroneous and the impact such determination had on the
relief Petitioner requested.
at In correspondence attached as enclosure (5), tne

office having cognizance over the subject matter addressed
in Petitioner’s application, Headquarters Marine Corps Code
JAM2, provided an advisory opinion. The opinion noted that
the Navy Central Adjudication Facility (DONCAF) is the
proper venue for Petitioner to contact in regards to his
security clearance. ‘Ine opinion further stated that due to
NDRB’s decision to upgrade the characterization of service
and reason for discharge, Petitioner’s request to upgrade
his reenlistment code should be approved and changed
accordingly. The advisory opinion also stated that all
adverse material pertaining to the administrative
separation for misconduct due to drug abuse should be
removed from Petitioner’s Official Military Personnel File
and all associated relief be granted. Such associated
relief included the removal of the NUP from the
Petitioner’s OMPF and adjustment of the Petitioner’s
discharge date to reflect his original expiration of
enlistment date.

MAJORITY CONCLUSION:

Upon review and consideration of all the evidence of record
and a favorable advisory opinion, a majority of the Board,
consisting of Mr. Zsalman and Mr. Ruskin, concludes that
Petitioner's request should be approved.

In reaching its conclusion, the majority relies on the
determinations made by NDRB in granting Petitioner an
upgrade to his characterization of service and reason for
discharge. The majority concludes that since Petitioner
had a personal appearance before the NDRB, their analysis
of the circumstances surrounding the alleged misconduct of
Petitioner was thoroughly assessed. The majority notes
that the NDRB had the opportunity to observe and question
Petitioner regarding the issue of whether Petitioner
knowingly used marijuana. The majority relies on the NDRB
decision which noted that after. careful consideration of
the entire record, documentation submitted by the applicant
and his sworn testimony, that a majority of the NDRB
members accepted Petitioner's assertion and made a factual
finding that Petitioner did not knowingly use marijuana.
The majority determined that in the absence of misconduct,
Petitioner was erroneously discharged and relief was
warranted.

wa
The majority of the Board also relies upon the advisory
opinion from the Marine Corps Judge Advocate Division which
recommended an upgrade to Petitioner's reenlistment code;
removal of all adverse material in Petitioner's Official
Military Personnel File pertaining to administrative
separation ror misconduct due to drug abuse; and that all
associated relief be granted. The majority concurs with
this recommendation. The majority further concludes that
the recommendation to remove all adverse material from
Petitioner's OMPF includes the removal of the underlying
NIP. The majority concluded that if there was no
underlying misconduct, any documentation of such misconduct
should be removed. Moreover, in the absence of the
underlying misconduct which served as the basis for
separation, the original discharge was erroneous. AS a
result the majority also concludes that the recommendation
that all associated relief be granted includes correcting
his record that he was not discharged on 23 August 2004 but
continued to serve on active duty until the expiration of
his enlistment on 21 October 2005 when he was honorably

released from active duty.

Finally, the majority of the Board determined that
Petitioner had not exhausted his administrative remedies
regarding his security clearance and must seek relief from
DONCAF .

MAJORITY RECOMMENDATION :

 

a. That Petitioner's naval record be corrected to
remove his nonjudicial punishment dated 22 March 2004 and
that all rights and privileges be restored.

b. That Petitioner's rank be restored to E-3/Lance
Corporal and his original date of rank be restored.

c. That any material or entries relating to the
administrative separation on 23 August 2004 be removed from
the Petitioner’s Official Military Personnel File.

d. The Certificate of Release or Discharge from Active
duty (DD Form 214, Aug 2009), executed on or about 23
August 2004, is modified to read block 27 (Reentry Code)
"RE-1A" vice "RE-4B".
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Certi f e

duty (DD Form 214, Aug 2009), executed on or about 23
August 2004, should be corrected to read that he was
released from active duty on 21 October 2005 and
transferred to the Individual Ready Reserve.

£. Block izc of the Certificate of Kelease or Discharge
from Active duty (DD Form 214, Aug 2009), executed on or
about 23 August 2004, is modified to read 04 years 00
months 00 days vice 02 years 10 months 02 days.

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 Proceeding, 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:

Mr. George, the minority, concurs with the unfavorable
advisory opinion form Headquarters Marine Corps (HOMC),
regarding the reentry code, found at enclosure (4). He
finds that Petitioner accepted NJP for the wrongful use of
marijuana, instead of requesting a trial by court-martial,
where he would have been represented by an attorney. The
minority particularly notes that Petitioner’s commanding
officer was in the best position to determine his guilt or
innocence and had all available evidence present. The
minority notes that Petitioner was found guilty and did not
appeal the finding.

Petitioner was then notified that he was being
administratively separated due to wrongful use of
marijuana. He waived his procedural right to an
administrative discharge board (ADB).

The minority is not persuaded by the favorable advisory
opinion from HOMC found at enclosure (5). This opinion
merely states that since NDRB found that Petitioner did not
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KnOWLNGIY USE Marijuana, his RE-
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upgraded. The minority finds it highly
the marijuana “laced” brownies defense more than seven
years after his NUP. The minority also particularly notes
Petitioner’s waiver of his right to an ADB, where he would
have been represented by counsel. The minority finds that
an AUB would nave been Petitioner’s best opportunity for

retention.
MINORITY RECOMMENDATION:

In view of the above, the minority recommends that no
relief be granted.

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
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.

/
enue. | Lumtry
ROBERT D. ZSALMAN BRONTE I. MONTGO R

Recorder Acting Recorder

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

C=
18 February 2014 moo BD, ‘en

ROBERT D. ZSALMAN
Acting Executive Director

 

 

 

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ROBERT L. WOODS
Assistant General Counse!
(Manpower and Reserve Affairs)

1000 Navy Pentagon, Am 4D
Washington, DC 20380-1000 ;