DEPARTMENT OF THE NAVY 

BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 

DocketNo. 1622-17 
OCT 09 2017 

Dear , 

This is in reference to your application for correction of your naval record pursuant to the 
provisions of 10 USC 1552. 

A three-member panel of the Board for Correction ofNaval Records, sitting in executive session, 
considered your application on 24 August 2017. The names and votes ofthe members ofthe 
panel will be furnished upon request. Your allegations oferror 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 ofyour naval record and 
applicable statutes, regulations and policies. 

A review of your record shows that you entered active duty with the Navy in January 2004. 
With the exception ofa summary court-martial conviction in 2005, you served without incident 
until February 2016. On 19 February 2016, you were cited for having an open alcoholic 
container in your vehicle while onboard . During a search ofyour vehicle 
after the open containers were seized, law enforcement also seized a package ofa leafy substance 
and smoking device that tested positive as a synthetic cannabinoid. Based on your possession of 
the Schedule I controlled substance and drug paraphernalia, you were processed for 
administrative separation for drug abuse on 16 May 2016. You elected an administrative 
separation board and your case was decided on 9 August 2016. The administrative separation 
board found sufficient evidence to support drug abuse and recommended a suspended separation 
with an honorable characterization of service. A letter of deficiency was file but relief was 
denied as you were discharged on 28 October 2016 with an Honorable characterization of 
service. Prior to your discharge, a medical determination was made that you did not suffer from 
any medical conditions that contributed to your misconduct. Despite your discharge, the 
Physical Evaluation Board (PEB) continued the processing ofyour Disability Evaluation System 
(DES) case and found you unfit for continued naval service due to lower back pain and 
cervicalgia. A disability rating of40% was assigned to your unfitting conditions. 

The Board carefully considered yonr arguments that yonr discharge was wrongful based on 
insufficient evidence to support a finding of misconduct. You also raise an injustice argument 
based on the administrative separation board's recommendation to suspend yonr separation and 
the existence ofdisability conditions that were determined to be unfitting by the PEB. 
Unfortunately, the Board disagreed with your rationale for relief. First, the Board did not find 
persuasive yonr contention that constitutional search and seizure principles should be applied to 
administrative separation boards. The Board concluded that administrative separation boards are 
not criminal proceedings in which constitutional evidentiary principles or military rules of 
evidence apply. The Board decided that administrative separation proceedings are primarily 
designed to determine whether a service member should be administratively retained or 
separated in the Navy or Marine Corps. Under these circumstances, each Service would want to 
consider all available evidence of potential misconduct, within the current enlistment, to 
determine whether an individual is worthy ofretention. With that rationale in mind and the lack 
ofany regulatory requirement that mandates the application ofconstitutional or military rules of 
evidence requirements in administrative separation board proceedings, the Board determined that 
Navy properly considered the existence of the controlled substance and drug paraphernalia found 
in yonr vehicle. Second, the Board decided there was sufficient evidence to support a finding 
that you intentionally introduced the synthetic cannabinoid onboard Joint Base Fort Eustis. The 
fact there is evidence that another individual, with a history of using controlled substances, may 
have used your vehicle did not convince the Board that the Navy erred in finding you were aware 
ofthe controlled substance in yonr vehicle. The Board found that you were the registered owner 
ofthe vehicle in which the controlled substance was found. This was strong evidence, in the 
Board's opinion, to base a finding that you had knowledge and intent to commit the misconduct 
that formed the basis of your discharge. The Board noted that there was no evidence that directly 
tied the seized controlled substance to another individual. Third, the Board also did not find 
persuasive your arguments that an injustice exists in yonr case. The fact the administrative 
separation board may have intended for you to be placed on the Disability Retirement List is 
speculative and, in any case, was only a recommendation that was not binding on the Navy. The 
Board considered yonr drug related misconduct extremely serious in light of the Navy's zero 
tolerance policy on wrongful drug use. In the Board's opinion, the seriousness ofyonr 
misconduct was sufficient to warrant your immediate separation by the Navy despite a contrary 
recommendation by the administrative separation board. Finally, the Board did not find an 
injustice based on the post-discharge PEB finding that you were unfit for continued naval service 
due to a service incurred disability. Disability regulations and Department of the Navy policy 
allow for administrative separation of service members for misconduct, even ifthey are pending 
a DES case, provided the first flag officer in yonr chain ofcommand approves the separation. In 
yonr case, a medical determination was made that yonr disability condition did not contribute to 
yonr misconduct and your separation was approved by Commander,  the 
first Flag Officer in your chain ofcommand. So the Board found no evidence that you were 
improperly processed for misconduct vice disability or that a nexus exists between your 
disability and yonr misconduct. Those findings combined with their belief that the mere 
existence of qualify disability doesn't create an injustice led them to conclude that a change to 
yonr narrative reason for separation is not appropriate. Accordingly, the Board was unable to 
find an error or injustice warranting a correction to yonr record and denied yonr application. 

Regarding your request for a personal appearance, the Board determined that a personal 
appearance with or without counsel will not materially add to their understanding ofthe issue(s) 
involved. Therefore, the Board determined that a personal appearance was not necessary and 
considered your case based on the evidence ofrecord. 

It is regretted that the circumstances of your case are such that favorable action cannot be taken 
at this time. You are entitled to have the Board reconsider its decision upon the submission of 
new and material evidence. New evidence is evidence not previously considered by the Board. 
In this regard, 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. 

Sincerely, 


Executive Director