DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 6461-18 Ref: Signature Date Dear This letter is in reference to your 30 June 2018 reconsideration request. You previously petitioned the Board for Correction of Naval Records (Board) and were advised that your application had been disapproved. Your case was reconsidered in accordance with Board procedures that conform to Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004). After careful and conscientious consideration of the entire record, the Board found the evidence submitted was insufficient to establish the existence of probable material error or injustice. Consequently, your application has been denied. A three-member panel of the Board, sitting in executive session, considered your application on 30 July 2019. The names and votes of the members of the panel will be furnished upon request. Your allegations of error and injustice were reviewed in accordance with administrative regulations and procedures applicable to the proceedings of this Board. Documentary material considered by the Board consisted of your application, together with all material submitted in support thereof, relevant portions of your naval record, and applicable statutes, regulations, and policies. The Board carefully considered your request for reinstatement to the Fiscal Year 2015 (FY15) chief warrant officer 3 (CWO3) promotion list and promotion to CWO3 with a retroactive date of rank (DOR) effective 1 December 2014. The Board considered your contention that your accidental use of previously prescribed oxycodone —beyond the prescription’s expiration date but for the same medical condition for which the oxycodone (and later, hydrocodone) was prescribed—was not wrongful and thus not in violation of the Navy’s Substance Abuse Policy. The Board also considered your contention that you “did not take an expired prescription, making the finding that [you] violated the Navy Substance Abuse Policy an error.” Further, the Board considered your contention that the Secretary of the Navy’s (SECNAV’s) decision to remove you from the CWO3 promotion list was “done at least in part due to the [incorrect] statement by the stating that [your] last prescription for oxycodone expired eight years prior to the incident.” Finally, the Board considered your contention that your removal from the CWO3 promotion list was unjust because it was based upon the recommendation of the Chief of Naval Operations (CNO), which was contrary to that of your chain of command and which reflected the CNO’s view that your positive test for oxycodone without a current prescription “call[ed] into question [your] judgment and decision making.” A previous panel of this Board determined that relief was not warranted “given the seriousness of your misconduct” and your “fail[ure] to adhere to the Navy’s Zero Tolerance Policy,” despite an earlier Board of Inquiry’s (BOI) finding that your use of oxycodone was not wrongful, and despite your commanding officer’s recommendation for immediate reinstatement of your promotion to CWO3. In doing so, that panel of this Board acknowledged the BOI’s findings but determined that “different authorities can view the same evidence and come to different conclusions.” That panel of this Board thus denied your application, concluding that the SECNAV’s removal of your name from the CWO3 promotion list was not in error or unjust. Although that panel’s findings were in error, based on flawed reasoning, its conclusion and final action were correct. After careful consideration of your application for reconsideration and of the entire record, the present panel of the Board reached the same conclusion. First, the Board considered your contention that your accidental use of previously prescribed oxycodone —beyond the prescription’s expiration date but for the same medical condition for which the oxycodone (and later, hydrocodone) was prescribed—was not wrongful and thus not in violation of the Navy’s Substance Abuse Policy. The Board agreed that such use was not wrongful and not in violation of the Navy’s Substance Abuse Policy. The Board determined, however, that such a finding is immaterial, noting that the CNO recommended that your name be removed from the promotion list not for misconduct but, instead, for his lack of “the necessary trust and confidence” to recommend you for promotion to the higher grade because your use of oxycodone without a current prescription “call[ed] into question [your] judgment and decision making.” In that regard, the Board determined that your admittedly accidental use of “left over” previously prescribed oxycodone, after you had been prescribed hydrocodone for the same condition, more than sufficed to support the CNO’s lack of trust and confidence in your judgment and decision making. The Board also considered your contentions that you “did not take an expired prescription, making the finding that [you] violated the Navy Substance Abuse Policy an error,” and that “it is an error to say that [you] violated the Navy’s Substance Abuse Policy” and “an error to remove [you] from the CWO3 promotion list for this conduct.” The Board agreed that you did not violate the Navy’s Substance Abuse Policy. The Board noted, however, that, despite your contention, there is no finding in the record that you violated the Navy’s Substance Abuse Policy. In contrast, as detailed above, the BOI found that you committed no misconduct. More significantly, the CNO, in his action memorandum to the SECNAV, three times expressly stated that the BOI found no misconduct, and the memo nowhere reflects a finding of misconduct. Further, the Board considered your contention that the SECNAV’s decision to remove you from the CWO3 promotion list was “done at least in part due to the [incorrect] statement by the [CO] of the [NDSL] stating that [your] last prescription for oxycodone expired eight years prior to the incident.” The Board, however, determined that, even if San Diego erred in incorrectly stating that your last prescription for oxycodone expired eight years prior to the incident, such error is harmless in the circumstances. In this regard, the Board notes that the erroneous statement is contained only in an enclosure (enclosure (12)) to the Report of Misconduct in your case and is not repeated or cited in the body of the Report itself, and the the author of the Report of Misconduct, observed in his endorsement to your response to the Report that “your prescription expired over a year ago.” The Board noted that, more pertinently, that same observation was expressly noted in the CNO’s action memorandum to the SECNAV, which nowhere repeats or cites the erroneous chronology. Finally, the Board considered your contention that your removal from the CWO3 promotion list was unjust because it was based upon the CNO’s recommendation, which was contrary to the “overwhelming support” of your chain of command. In this regard, you complain that the CNO had “limited knowledge” of your judgment, presumably because he was not one of your “direct supervisors.” The Board determined, however, that the facts presented to the CNO were sufficient for him to conclude that, for purposes of your promotion, he lacked “the necessary trust and confidence” to recommend you for promotion to the higher grade because your use of oxycodone without a current prescription, which, for him, “call[ed] into question [your] judgment and decision making.” In this regard, the Board noted the requirement that officers be mentally, physically, morally, and professionally qualified for promotion, and the statutory requirement that the SECNAV certify to the Secretary of Defense that officers submitted for promotion meet the exemplary conduct provisions of section 8583 of Title 10, U.S. Code. The Board thus concluded that your removal from the FY15 CWO3 promotion list does not constitute a probable material error or injustice, and that, therefore, corrective action is not warranted. It is regretted that the circumstances of your reconsideration petition are such that favorable action cannot be taken. You are entitled to have the Board reconsider its decision upon the submission of new matters, which will require you to complete and submit a new DD Form 149. New matters are those not previously presented to or considered by the Board. In the absence of new matters for reconsideration, the decision of the Board is final, and your only recourse would be to seek relief, at no cost to the Board, from a court of appropriate jurisdiction. It is important to keep in mind that a presumption of regularity attaches to all official records. Consequently, when applying for a correction of an official naval record, the burden is on the applicant to demonstrate the existence of probable material error or injustice.