-=TO: Secretary of the Navy 7s

37— The Board; _having-reviewed—all_the-facts-of_record

DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490

TAL
Docket No: 488-14
16 April 2014

From: Chairman, Board for Correction of Naval Records

 

Subj: a = RECORD OF

Ref: (a) 10 U.S.C. 1552

Encl: (1) DD Form 149 with attachments
(2) Case summary with attachments

(3) OLC (PERS-00J) ltr dtd 16 Mar 14
(4) Subject's naval record

1. Pursuant to the provisions of reference (a), Petitioner, an
enlisted member of the Navy, filed enclosure (1) with this Board
requesting that his record be corrected by removing derogatory
material regarding charges referred to a special court-martial
(SPCM). This request includes the removal of an enlisted
performance evaluation for the period from 14 September 2012 to.
19 June 2013. Petitioner further requested that he be

reinstated to paygrade E-7.

2. The Board, consisting of Messrs. Ivins, Lippolis, and
zsalman, reviewed Petitioner's allegations of error and
injustice on 2 April 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
records, and applicable statutes, regulations, and policies. In

addition, the Board considered the advisory opinion (AO)
provided by the Navy Personnel Command, Office of Legal Counsel

(PERS 00J) dated 16 March 2014, a copy of which is attached to
enclosure (2). ,

 

 

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. On 12 May 2013 Petitioner was found at home in an
incoherent state with empty bottles of prescribed medication,
Cymbalta and Tramadol, found near him. He was admitted to a
civilian hospital and administered a urinalysis which tested
positive for the wrongful use of Phencyclidine (PCP). The
following day he was transferred to Walter Reed National
Military Medical Center (WRNMC) and administered both,a blood
and urine test, both of which were negative for the wrongful use

of PCP,

- da, On 19 June 2013, upon Petitioner's transfer to Naval
District Washington due to pending disciplinary and legal
actions, he was issued an adverse performance evaluation for the
period from 14 September 2012 to 19 June 2013.

e. On il July 2013, Petitioner was charged with being in an
unauthorized absence (UA) status and wrongful use of controlled
substances. Subsequently, these charges were referred for trial

by SPCM.

f. On 9 August 2013 Petitioner was issued and subsequently
signed an administrative remarks (Page 13) entry which stated
that his recommendation for advancement to paygrade E-7 was
being withdrawn due to a pending investigation regarding the
foregoing charges.

g. On 4 October 2013 the referred charges of UA and wrongful
use of controlled substances were withdrawn due to the discovery
of new and exculpatory evidence, in part, from Petitioner’s
physician at WRNMC. In this regard, the physician stated that
the dosage increase and interaction between Petitioner's
prescriptions of Cymbalta and Tramadol caused a medical
condition called Seratonin Syndrome. The physician further
stated that because of this interaction between the medicines
the initial urinalysis was not reliable and could cause a false
positive for the wrongful use of PCP.

hl After a review of the foregoing investigative-resuits-and—
exculpatory evidence, on 12 December 2013, a ietter was
submitted in support of reinstating Petitioner’s advancement to
paygrade .
E-7.5
i. In an advisory opinion (AO) from the Office of Legal
Counsel (PERS 007) dated 16 March 2014, it was recommended that
relief be granted since the charges of UA and wrongful use of a
controlled substance were not dismissed due to a technicality
and there was no evidence that Petitioner had any culpability in
the matter. The AO stated, in part, as follows:

.This does not appear to be a situation in which criminal
charges were dismissed based on a technicality or could not
be proved beyond a reasonable doubt, but may have been

- substantiated: at some lesser forum. All of the medical
evidence supports that [Petitioner] did not use PCP, but,
rather, the combination of prescription medications caused a
false positive. In addition, the increased dosage [he] was
prescribed immediately prior to not reporting to work appears
to have been the proximate cause of his UA. There is no
evidence that fhe} had any culpability in these matters. In
addition to the charges having been dropped, he received a
letter of support from the authority who had previously
‘issued the Page 13.

CONCLUSION:

Upon réview and consideration of all the evidence of record, and
especially in light of the AO, the Board finds the existence of

an error and injustice warranting corrective action. In this

regard, the Board concludes that the performance evaluation for
the period from 14 September 2012 to 19 June 2013 and the page
13 entry signed on 15 August 2013 should be removed from the
record since there was no evidence that Petitioner had
wrongfully used PCP and these charges were dropped/dismissed.
Further, Petitioner should be reinstated to paygradé E-7 since
his removal was based solely on the now dismissed charges.

In view of the above, the Board directs the following corrective
action.

RECOMMENDATION:

a. That Petitioner's naval record be corrected by removing
the performance evaluation for the period from 14 September 2012
to 19 June 2013 and the page 13 entry signed on 15 August 2013.

b. That Petitioner's naval record be corrected by removing
any and all related material referencing charges of UA and
wrongful use of controlled substances during the period from 12
May to 12 December 2013.
e. That Petitioner’s naval record by corrected by reflecting
that he was advanced to paygrade E-7 on his original date of
rank, and that all rights and privileges thereto were restored.

 

d. 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.

e. 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 ina
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. sponte

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.

TVR LAD

ROBERT D. ALMAN
Acting Executive Director