TJR
Docket No:7545-06
4 December 2007

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

Subj 

Ref:	(a) 10 U.S.C. 1552
(b)	HQMC ltr 1070 JAM7, 30JAN07
(C)	HQMC ILtr 1070 JAM3, 28SEP07

End:	(1) DD Form 149 with attachments
(2)	Case summary
(3)	Subject’s naval record

1.	Pursuant to the provisions of reference (a), Petitioner, a former enlisted member of the Marine Corps Reserve, filed enclosure (1) with this Board requesting that the characterization of his service be upgraded and that his narrative reason for separation and reenlistment code be changed. He further requested that his naval record be corrected by removing all references to the nonjudicjal punishment (NJp) he received on 20 November 1988, and that he be reinstated to his former rank of lance corporal.

2.	The Board, consisting of Ms. ~ Mr.  and Ms. , reviewed Petitioner’s allegations of error and injustice on 4 December 2007 and, pursuant to its regulations, determined that the partial 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.	Although it appears that enclosure (1) was not filed in a timely manner, it is in the interest of justice to waive the statute of limitations and review the application on its merits.
c.	Petitioner enlisted in the Marine Corps Reserve on 5 June 1986 at age 19 and began a period of active duty on 9 June 1986.

d.	Petitioner’s record reflects a record of drills for the period 16-17 July 1988 in which he participated in a urinalysis. On 20 July 1988 a Navy drug laboratory reported that Petitioner’s urine sample tested positive for cocaine. On 5 August 1988 the drug laboratory submitted this information to Petitioner’s commanding officer.

e.	On 29 September 1988 Petitioner was notified, by certified mail, that pending administrative separation action had been initiated because of his misconduct as evidenced by drug abuse, specifically, wrongful use of cocaine. As a result, Petitioner waived his rights to consult with legal counsel, to present his case to an administrative discharge board, to submit a statement in support of his case or in rebuttal to the discharge, and to refuse nonjudicial punishment (NJP). He further acknowledged that acceptance of NJP “did not” preclude other adverse administrative action.

f.	On 20 November 1988 Petitioner received NJP for wrongful use of cocaine during the period from 1 to 31 July 1988. The punishment imposed was a reduction to private first class (PFC) /paygrade E-2.

g.	On 10 December 1988 Petitioner’s commanding officer recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse as evidenced by the positive urinalysis for cocaine. The discharge authority approved this recommendation and directed an other than honorable discharge and the assignment of an RE-4B reenlistment code. On 4 January 1989 Petitioner, while serving in paygrade E-2, was so discharged.

h.	In Petitioner’s application, he contends, in part, that his undiagnosed alcoholism was the reason for his one time use of cocaine and that he was drunk when he waived his procedural rights, and signed the documents without reading them. He further contends that he was not offered rehabilitation for a first time offense, he was not a noncommissioned officer, and that his record was excellent prior to this incident, as evidenced by his above average proficiency and conduct~ marks. He states that his marks were lowered to justify an other than honorable discharge. Finally, he contends that the command abused its authority when discharge was directed based solely on a positive urinalysis during a weekend drill, and not based on his overall record of service.

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i.	Petitioner’s counsel asserts, in part, that the NJP was legally deficient because it was imposed for cocaine use when Petitioner was in a civilian status, and that Petitioner unknowingly ingested the cocaine while in an inebriated state.

j.	Reference (b), an advisory opinion from Headquarters, Marine Corps, Deputy, Military Law Branch, Judge Advocate Division (JAN7), recommends Petitioner’s requests for recharacterization of his service, change of his reenlistment code and narrative reason for separation, and removal of the derogatory material regarding his wrongful use of cocaine be denied because no legal error occurred in the administrative separation initiation, proceeding, or review, and because of Petitioner’s untimely filing of his application, 17 years after his discharge.

k.	Reference (c), an advisory opinion from JAN3, recommends removal of the NJP and restoration in rank to lance corporal (LCPL)/paygrade E-3 because Petitioner was not a member of a Reserve component on active duty or inactive duty training, and therefore was not subject to the Uniform - Code of Military Justice (UCMJ). As a result, Petitioner should not have received NJP. However, this recommendation further states, in part, that Petitioner’s admitted use of cocaine in the civilian community, while serving in the inactive reserves, may form the basis for characterization of service, if such conduct affects the performance of his duties. In this regard, Petitioner’s use of cocaine and the fact that he reported for his inactive duty training with the drug in his system, not only affected his performance of duties and responsibilities, it also was sufficient to warrant an administrative separation and nonrecommendation for reenlistment.

CONCLUSION:

Upon review and consideration of all the evidence o2 record, the Board concludes that Petitioner’s request warrants partial favorable action. In this regard, the Board substantially concurs with the advisory opinion recommendations provided by references (b) and (c), and as such, concludes that the NJP was improperly imposed. Accordingly, the Board believes that Petitioner’s NJP, imposed on 20 November 1988, should be removed from the record, and that the record should also be corrected to reflect that he was not reduced in rank to PFC.
The Board further notes Petitioner’s admitted wrongful use of cocaine, and concludes that his misconduct was sufficient to warrant an other than honorable discharge by reason of misconduct and the assignment of an RE-4B reenlistment code.

In view of the foregoing, the Board finds the existence of an injustice warranting the following partial corrective action.

RECOMMENDATION:

a.	That Petitioner’s naval record be corrected by removing the NJP documentation (NAVMC 118 entry) dated 881120.

b.	That Petitioner’s naval record be corrected to show that he was not reduced in rank to PFC.

c.	That no further relief be granted.

d.	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.

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 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

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.

						

						W. DEAN PFEIFFER
						Executive Director