DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS 2 NAVY ANNEX
WASHINGTON DC 2O37O~51OO

CRS: 
Docket No: 8398-06
20 February 2007

A three-member panel of the Board, sitting in executive session, considered your application and a majority recommended that your naval record be corrected as set forth in the attached report dated 1 February 2007. In accordance with current regulations, the Assistant Secretary of the Navy for Manpower and Reserve Affairs conducted an independent review of the Board’s proceedings and approved the minority recommendation that your application be denied.

You are advised that reconsideration of your case will be granted only upon the presentation of new and material evidence not previously considered by the Board and then, only upon the recommendation of the Board and approval by the Assistant Secretary.

It is regretted that a more favorable reply cannot be made.

Sincerely,

Enclosure

DEPARTMENT OF THE NAVY
OFFICE OF THE ASSISTANT SECRETARY
       (MANPOWER AND RESERVE AFFAIRS)
1000 NAVY PENTAGON
                                           WASHINGTON, D.C. 20350.1000

February 12, 2007

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF NAVAL RECORDS
	Subj: BCNR PETITION OF	-~

The recommendation of the Board for Correction of Naval Records, dated February 1, 2007, is disapproved. I have considered this petition under the provisions of 10 U.S.C. § 1552 and determined that the Petitioner’s request does not warrant the partial relief recommended, that is, he is not entitled to have his naval record corrected to show he was reconitnended for reenlistment when he was discharged on May 22, 2006.

The record shows that on September 29, 2005, the Petitioner had a positive urinalysis for amphetamine. At the time the Petitioner stated that another sailor gave him the unauthorized prescription drug during a drill weekend. The Petitioner waived all of his procedural rights, including his right to an administrative discharge board, and requested of his command the more favorable general discharge under honorable conditions and an RE-3 reenlistment code. As requested, the Navy discharged the Petitioner with a general discharge by reason of misconduct due to drug abuse on May 22, 2006, but it assigned him an RE-4 reenlistment code.

Before the Board the Petitioner contends that, while in a drill status, he mentioned to another sailor that he was having difficulty focusing on his equipment. This sailor remarked that Petitioner may have attention deficit disorder (ADD) and offered him prescription pills that she was taking for ADD. The Petitioner acknowledges that he knew it was illegal for him to take the pills, but he believed that concentrating on his job was the higher priority. The Petitioner also presented the Board with evidence that he has been diagnosed with ADD and has been prescribed the medication the other sailor had given him.

A majority of the Board acknowledges that the Petitioner took an illegal drug, but credits the Petitioner’s argument that he only did it to enhance his military performance. In its view, this mitigates the Petitioner’s misconduct and is deserving of the partial relief of a reenlistment recommendation. (The Petitioner had also sought reinstatement and changes to the characterization and reason for his discharge.) I disagree.

As the minority notes, the Petitioner admits that his action was wrong and that he had waived his right to an administrative discharge board. In other words, he did not avail himself of the opportunity to plead his case while he was on active duty before the forum with the more demanding and comprehensive adversarial procedures established for just this purpose. Instead, the Petitioner opted to request that his command discharge him with a higher characterization of service, which was granted, and for the relatively informal, effectively ex parte proceedings of the Board. Under these circumstances, there is no injustice in not permitting the Petitioner to benefit from avoiding the more appropriate forum for adjudicating his admitted wrongdoing.
Subj:	BCNR PETITION or

The requested and recommended relief is denied.

ROBERT T. CALl
Assistant General Counsel
(Manpower and Reserve Affairs)
	4’,	*

2

DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

WASHINGTON DC 2O37O~5lOc_I~RS No: 8398—06 2 NAVY ANNEX

February 2007

From:	Chairman, Board for Correction of Naval Records

To:	Secretary of the Navy
Subj:	REVIEW OF NAVAL RECORD OF

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

End:	(1) Case Summary
(2)	Subject’s naval _~ecord

1.	Pursuant to the provisions of reference (a), Petitioner an enlisted member of the Navy Reserve, applied to this Board requesting reinstatement or changes in the characterization of his service and reason for separation, and that he be recommended for reenlistment as of 22 May 2006.

2.	The Board, consisting of Messrs.
reviewed Petitioner’s allegations of error and injustice on 4 January 2007 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 Navy Reserve on 21 May 2003 in the advanced pay grade program after four years of prior active service in the Navy. He then continued to serve satisfactorily for more than two years, advancing in rate to second class petty officer (MR2; E-5).

d.	The record reflects that on 29 September 2005 Petitioner had a positive urinalysis for amphetamine. At the time of the urinalysis he had stated that he had been given an unauthorized prescription drug by another Sailor on a drill weekend.

e.	After Petitioner waived all of his procedural rights, including the right to an administrative board, on 5 February 2006 his commanding officer recommended a general discharge by reason of misconduct due to drug abuse. He was so discharged on
22 May 2006. At that time, he was assigned an RE-4 reenlistment code.

f.	Petitioner contends that while in a drill status, he found that he could not focus on the equipment that he was operating and mentioned his problem to another Sailor. The other Sailor remarked that maybe he had attention deficit disorder (ADD) and offered him prescription pills that she was taking for ADD. As a petty officer, he knew it was illegal for him to accept the pills but he believed that concentrating on his job was a higher priority. He argues that he acknowledged his actions when he took the urinalysis. He also presents evidence that he has now been diagnosed with ADD and been prescribed the drug that the other Sailor gave him.

g.	Applicable regulations state that an other than honorable discharge is normally approved when an individual is discharged due to misconduct due to drug abuse. Further, a recommendation against reenlistment is required when an individual is discharged for misconduct.

MAJORITY CONCLUSION:

Upon review and consideration of all the evidence of record, a majority of the Board, consisting of Mr. Grover and Mr. Bourgeois, concludes that Petitioner’s request warrants partial relief. In this regard, the majority agrees that Petitioner took the illegal drugs but only in order to enhance his military performance. Although, this does not mean that he should be reinstated or have his characterization and reason for discharge changed, the majority does believe that the circumstances of the drug use mitigate his misconduct and that Petitioner should be recommended for reenlistment.

MAJORITY RECOMMENDATION:

a. That Petitioner’s naval record be corrected to show that he was recommended for reenlistment on 22 May 2006 vice not recommended.

b. That no further relief be granted.

c. 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.

d. That any material directed to be removed from Petitioner’s
	                           2
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.

MINORITY CONCLUSION:

The minority member of the Board, Mr. Hess, agrees with the majority of the Board that Petitioner’s requests for reinstatement or changes in the characterization of service and reason for separation should be denied. Nevertheless, he disagrees with the majority’s belief that a military member who knowingly took drugs, fully aware that such action was wrong, should be given a second chance. Mr. Hess believes that since Petitioner waived his administrative discharge board and chose not to request retention in this forum, he should not be heard to argue to the Board that he should be recommended for retention. Otherwise, there is no reason for an administrative discharge board to consider a case, and petitioners will surely opt for the informal exparte proceedings of this Board rather than the more demanding and comprehensive procedures of an administrative discharge board.

MINORITY RECOMMENDATION:

That Petitioner’s request be denied.

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	ALAN F. GOLDSMITH
Recorder	Acting Recorder

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

Reviewed and approved:

Robert T. Call
Assistant General Counsel
Manpower and Reserve Affairs)