DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 225-20 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Ref: (a) 10 U.S.C. § 1552 Encl: (1) DD Form 149 1. Pursuant to the provisions of the reference, Petitioner, through counsel, filed the enclosure with the Board for Correction of Naval Records (Board), requesting the following corrections to his Certificate of Release or Discharge from Active Duty (DD Form 214): change of rank to LCpl, change of paygrade to E3, change Block 24 (character of service) to honorable or general, and change Block 28 (narrative reason for separation) to secretarial authority. 2. The Board, consisting of , reviewed Petitioner's allegations of error and injustice on 31 March 2020, 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, relevant portions of his naval record, 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 regulation within the Department of the Navy. b. On 22 March 2006, during the enlistment process, Petitioner signed a statement of understanding on the Marine Corps’ policy concerning illegal use of drugs. On 10 April 2006, he began active duty. c. On 31 March 2008, Petitioner tested positive for cocaine during a command urinalysis held on 27 March 2008. d. On 14 April 2008, Petitioner was notified that he was ineligible for promotion for a period of 18 months due to a positive urinalysis. e. On 15 April 2008, Petitioner was subsequently counseled that he was recommended for administrative separation by reason of drug use. f. On 16 July 2008, Petitioner signed a pre-trial agreement agreeing to plead guilty at a summary court-martial (SCM) to the charge of wrongful use of cocaine providing the convening authority withdraw the charges and specifications made at a pending special court-martial. g. On 14 August 2008, the Commanding Officer (CO) notified Petitioner of administrative separation processing by reason of misconduct due to drug abuse. He consulted with counsel and requested an administrative discharge board (ADB). (Petitioner waived the ADB in order to accept nonjudicial punishment (NJP), vice face a SCM.) h. On 2 October 2008, Petitioner received NJP for wrongful use of a controlled substance. He received reduction to PFC (E-2), forfeiture of pay, and restriction for 60 days. i. On 17 October 2008, the CO , recommended that Petitioner be separated with an under other than honorable (OTH) conditions characterization of service. j. On 14 August 2009, the CO , recommended that Petitioner be separated with an other than honorable (OTH) conditions characterization of service by reason of misconduct due to drug abuse. k. On 25 September 2009, the CO concurred with the CO , recommendation. l. On 8 October 2009, Petitioner acknowledged his rights for separation proceedings. Petitioner consulted with counsel and requested an ADB. m. On 23 November 2009, the separation authority directed Petitioner be discharged with an OTH characterization of service and reentry code of RE-4B. On 22 December 2009, Petitioner was discharged without an ADB. CONCLUSION Upon review and consideration of all the evidence of record, the Board concluded that Petitioner was never afforded his due process based on the Marine Corps officials failing to honor Petitioner’s right to an Administrative Separation Board. The Marine Corps officials actions in this matter clearly demonstrated an injustice, which warrants full relief. Additionally, the Board noted that based upon regulations at the time, Petitioner was in a promotion restriction status for 18 months from the time of the receipt of the positive urinalysis [11 April 08]. The Board also noted that during 2009, Petitioner was only given a non-recommendation for promotion on 9 December 09. The Board considered that a Marine being administrative separated would be ineligible for promotion, however, based on the Marine Corps official’s actions, Petitioner would have been eligible for promotion to lance corporal (E-3) on 1 October 2009. In view of the foregoing, the Board finds the existence of an injustice warranting the following corrective action. RECOMMENDATION Petitioner shall be issued a new DD Form 214 Certificate of Release or Discharge from Active Duty with the flowing changes: Block 4a: LCPL Block 4b: E-3 Block 12h: 2009 10 01 Block 24: Honorable Block 25: MARCORSEPMAN 6214 Block 26: JFF1 Block 28: Secretarial Authority Petitioner shall be issued an honorable discharge certificate. Petitioner’s pay and allowances shall be adjusted (credit) for the promotion to LCPL(E-2) effective 1 October 2009 to 22 December 2009 (discharge) Note: Defense Finance & Accounting Service (DFAS) will complete an audit of Petitioner’s records to determine if Petitioner is due any back pay and allowances. That no further changes be made to Petitioner’s record. A copy of this Report of Proceedings be filed in Petitioner’s naval record. Upon request, the Department of Veterans Affairs be informed that Petitioner's application was received by the Board on 14 January 2020. 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. 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 Regulations, 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 the reference, has been approved by the Board on behalf of the Secretary of the Navy.