DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 7114-20 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD OF FORMER , USN, XXX-XX- Ref: (a) 10 U.S.C. §1552 (b) USD Memo, “Guidance to MilitaryDischarge Review Boards and Boards for Correction of Military / Naval Records Regarding Equity, Injustice, or Clemency Determinations,” 25 July 2018 Encl: (1) DD Form 149 (2) NAVPERS 1626/7, Report and Disposition of Offense(s), 30 Aug 16 (3) NAVPERS 1910/31, Administrative Separation Processing Notice, dtd 2 Sep 16 (4) Record of Proceedings of an Administrative Separation Board in case of [Petitioner], (5)dtd 18 Oct 16 CO Memo, subj: Recommendation for (6)DD Form 214 (7) NDRB Docket No. ND18-01033, dtd 31 Jul 20 1. Pursuant to the provisions of reference (a), Subject, hereinafter referred to as Petitioner, filed enclosure (1) with the Board for Correction of Naval Records (Board), requesting that his characterization of service be upgraded to honorable and that the narrative reason for his separation, separation code, and reentry code bechanged to reflect “Secretarial Authority.” 2. The Board reviewed Petitioner’s allegations of error and injustice on 27 January 2021 and, pursuant to its regulations, determined that the corrective action indicated below should be taken. Documentary material considered by the Board consisted of the enclosures, relevant portions of Petitioner’s naval record, and applicable statutes, regulations, and policies, to include reference (b). 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, the Petitioner exhausted all administrative remedies available under existing law and regulations within the Department of the Navy. b. Petitioner enlisted in the Navy and began a period of active duty on 20 May 2015. See enclosure (6). c. On 2 September 2016, Petitioner received nonjudicial punishment (NJP) for wrongfully using marijuana in violation of Article 112a, Uniform Code of Military Justice (UCMJ). See enclosure (2). d. On 2 September 2016, Petitioner was notified that he was being processed for administrative separation by reason of misconduct due to drug abuse and commission of a serious offense, both based on the marijuana use for which he received NJP. He elected to exercise his right to an administrative separation board. See enclosure (3). e. On 6 October 2016, an administrative separation board found that the preponderance of the evidence supported the allegations of drug abuse and commission of a serious offense.1 Despite this finding, the administrative separation board recommended by a vote of 2-1 that Petitioner be retained in the Navy, and that his service be characterized as “General (Under Honorable Condition)” if he were separated contrary to the board’s recommendation. Petitioner asserted at the hearing that he did not knowingly ingest marijuana, and suggested that his positive urinalysis may have resulted from his consumption of gummy bears/worms laced with tetrahydrocannabinol. See enclosure (4). f. By memorandum dated 18 October 2016, Petitioner’s commanding officer recommended that he be separated by reason of misconduct for drug abuse and commission of a serious offense with a general (under honorable conditions) characterization of service despite the recommendation of the administrative separation board that Petitioner be retained. See enclosure (5). g. Petitioner was discharged from the Navy on 29 November 2017 for misconduct due to drug abuse with a general (under honorable conditions) characterization of service. See enclosure (6). h. On 8 June 2020, the Naval Discharge Review Board (NDRB) denied Petitioner’s request that his characterization of service be upgraded to honorable based upon the administrative separation board’s recommendation and that his service was otherwise honorable. TheNDRB explained that the administrative separation board’s findings are merely a recommendation to the separation authority, and that Petitioner’s characterization of service was equitable and consistent with that assigned to others under similar circumstances. See enclosure (7). i. Petitioner asserts that he did not engage in the alleged misconduct and that the evidence was insufficient to sustain a finding that he violated Article 112a, UCMJ; that the Navy acted improperlywhen it separated Petitioner despite the administrative separation board’s recommendation that he be retained; and that a general (under honorable conditions) characterization of service is not equitable considering the relatively minor nature of the misconduct at issue, the mitigating factors surrounding the misconduct, and Petitioner’s overall military service record. Specifically, Petitioner asserted that he never knowing used or ingested marijuana, and suggests that he failed a urinalysis because he consumed gummy bears/worms that he did not know to be laced with tetrahydrocannabinol. He also contends that the positive urinalysis alone was insufficient to establish Petitioner’s knowing or wrongful use of marijuana in light of his assertion of innocent ingestion. Finally, Petitioner detailed his contributions to his community since being discharged from the Navy. See enclosure (1). 1 The administrative separation board unanimously found that the allegation of drug abuse was supported by the preponderance of the evidence, and by a vote of 2-1 that the allegation of commission of a serious offense was supported by the preponderance of the evidence. MAJORITY CONCLUSION: Upon careful and conscientious consideration of all of the evidence of record, the Majority of the Board determined that Petitioner’s application warrants the partial relief indicated below. The Majority found insufficient evidence to establish any error or injustice in the decision to separate Petitioner for drug abuse with a general (under honorable conditions) characterization of service. As the NDRBfound, the administrative separation board’s retention recommendation was not binding upon the separation authority. Further, Petitioner’s misconduct was substantiated at both his NJP hearing and at his administrative separation board, suggesting that his innocent ingestion defense was not believed by those who heard the evidence. In addition to reviewingPetitioner’s separation for error or injustice, the Majority also considered the totality of the circumstances to determine whether relief is warranted in the interests of justice in accordance with reference (b). In the regard, the Majority considered, among other factors, the relatively minor and isolated nature of Petitioner’s misconduct; Petitioner’s assertion that he did not knowing consume marijuana; that the administrative separation board recommended that Petitioner be retained in the Navy despite his misconduct; Petitioner’s otherwise meritorious service both before his misconduct and after the administrative separation process was initiated; and Petitioner’s post-service contributions in his community by working with children and extensive volunteer activities. The Majority was impressed with Petitioner’s post-service conduct and rehabilitation efforts, and believed that they warrant some relief under the totality of the circumstances. Accordingly, the Majority found that the narrative reason for Petitioner’s separation should be changed to “Secretarial Authority,” along with corresponding changes to his separation code and separation authority, to minimize the potential future stigma that it would provide and to encourage Petitioner to continue his positive rehabilitation efforts. The Majority did not, however, believe that an upgrade to Petitioner’s characterization of service was warranted under the totality of the circumstances given the nature of the misconduct which resulted in his separation from the Navy. MAJORITY RECOMMENDATION: In view of the above, the Majority of the Board recommends that the following corrective action be taken on Petitioner’s naval record: That Petitioner be issued new DD Form 214 reflecting that the narrative reason for his separation was “Secretarial Authority”; that the separation authority was “MILPERSMAN 1910-164” ; and that his separation code was “JFF.” Petitioner’s characterization of service shall remain as “General (under honorable conditions)” and his reentry code shall remain as “RE-4.” That no further corrections be made to Petitioner’s record. That a copy of this report of proceedings be filed in Petitioner’s naval record. MINORITY CONCLUSION: The Minority of the Board did not agree with the Majority conclusion that relief was warranted under the totality of the circumstances. While the Minority acknowledged Petitioner’s meritorious post-discharge record, it did not believe that the mitigating circumstances were sufficient to warrant relief. Given that Petitioner was properly separated for drug abuse just a few years ago, the Minority did not believe that any change to his record was warranted at his time. MINORITY RECOMMENDATION: In view of the above, the Minority of the Board recommends that no corrective action be taken on 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-titled matter. 5. The foregoing action of the Board is submitted for your review and action. 2/12/2021 Assistant General Counsel (Manpower and Reserve Affairs) Decision: MAJORITY Recommendation Approved (Partial Relief; Secretarial Authority)