DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 8864-17 Ref: Signature date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Subj: REVIEW OF NAVAL RECORD Ref: (a) 10 U.S.C. § 1552 (b) USD memo of 25 Jul 18, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations” Encl: (1) DD Form 149 (NR20170008864) (2) DD Form 149 (NR20160002366) 1. Pursuant to the provisions of reference (a), Petitioner, a former enlisted member of the Navy Reserves, filed enclosure (1) with this Board seeking reconsideration of her previously denied application, enclosure (2). Petitioner’s request was reviewed in accordance with Board of Correction of Naval Records procedures that conform to Lipsman v. Secretary of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004). Petitioner seeks correction to her Certificate of Release or Discharge from Active Duty (DD Form 214), and asks for a change to her discharge characterization and “re-notification” in regard to the administrative separation proceedings that were initiated against her, and ultimately resulted in her discharge from the Navy with an other than honorable (OTH) characterization of service on the basis of drug abuse. 2. The Board, consisting of , reviewed Petitioner’s allegations of error and injustice on 28 February 2019, 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, relevant portions of Petitioner’s naval service 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. It is in the interest of justice to review the application on its merits. c. Petitioner enlisted in the Navy Reserves on 29 November 2001, for a period of eight years, and re-enlisted on 21 March 2010. Petitioner served honorably and without incident until she tested positive for a controlled substance following a command-directed urinalysis conducted on 17 October 2015. d. On 20 November 2015, Naval Operational Support Center (NOSC) initiated administrative separation proceedings against Petitioner. The NOSC attempted to notify Petitioner of the separation proceedings by certified mail. Petitioner did not acknowledge receipt of the notification by signature, and the NOSC forwarded the recommendation for her administrative separation, absent her acknowledgement of the proceedings. The commanding officer (CO), NOSC referenced a “Sworn Affidavit of Service by Mail,” and noted that Petitioner failed to respond within the allotted 30 days to the notice of separation proceedings, and that an administrative separation board was not held. e. Petitioner was discharged from the Navy Reserves at the end of January 2016, on the basis of Misconduct-Drug Abuse, and received an other than honorable characterization of service and a reentry (RE) code of RE-4. f. Petitioner’s end of reserve enlistment obligation was 21 March 2016. g. Petitioner contends that she was not aware of the administrative separation proceedings against her and requests that her OTH be removed from her record, and that she be re-notified of administrative separation proceedings against her so that she may request an administrative separation board. h. Petitioner’s first application to the Board was denied in a letter dated 30 May 2017. Petitioner submitted additional information for reconsideration, and now asks that the Board grant her relief based on the new evidence provided. i. In her application for reconsideration, Petitioner submits a letter dated 16 September 2017, from the CO at beginning November 2015. , who served as Petitioner’s CO stated that he assumed command of the unit on 7 November 2015, and Petitioner performed her drills in accordance with reserve requirements during November 2015, December 2015, and January 2016. The CO noted that his unit had participated in a “unit-in-the-spotlight administrative record review” just prior to his assumption of command, and it was his understanding that Petitioner’s address was up to date and correct as of December 2015. j. The CO noted in his letter that Petitioner intended to participate in the February 2016 drill, and that prior to the February drill weekend, his unit discovered that Petitioner was no longer listed on the Reserve Unit Assignment Document (RUAD). His senior enlisted leader learned from the NOSC that Petitioner was no longer in the Navy. The unit’s executive officer (XO) contacted the NOSC and discovered that Petitioner’s administrative separation was referenced in an “un-briefed PowerPoint slide” during the NOSC’s January leadership meeting. The CO indicated that he, his XO, and the senior enlisted leader were not aware of the administrative separation proceedings against Petitioner until after she was discharged. k. The CO further stated that he spoke with CO, about the notification process for incidents of this magnitude and noted that he found the process to which Petitioner was subjected to be “inadequate.” His letter stated that he was unaware of the positive urinalysis, and that he was unable to appropriately evaluate the situation with regard to Petitioner’s mission and security requirements. He further noted that Petitioner was the unit Career Counselor, and without proper notification, the unit was “unable to conduct an appropriate turn over for this critical billet, significantly impacting personnel. . . .” CONCLUSION: The Board, in its review of Petitioner’s entire record and application, carefully weighed all potentially mitigating factors, including Petitioner’s years of honorable service, as well as her request for the opportunity to appear before an administrative separation board and contest the charges of wrongful use of a controlled substance. The Board found that although NOSC, Baltimore had the authority to notify Petitioner by certified mail, because Petitioner was drilling properly with her unit she could have been notified in person. Furthermore, based on the information in letter, Petitioner’s administrative separation process was unjust in that it did not adequately inform her chain of command of the positive urinalysis and resultant separation proceedings. Additionally, the Board noted that Petitioner’s requested relief appears to be for the right to appear before an administrative separation board and to avail herself of her due process rights during the administrative separation proceedings. Based on the information reflected in letter, and in conjunction with Petitioner’s contentions and her years of honorable service as reflected in her record, the Board determined that Petitioner’s administrative separation was unjust. The Board noted that if Petitioner is returned to reserve duty in a new enlistment period, administrative separation proceedings based on alleged misconduct from a prior enlistment (the October 2015 urinalysis) are not permitted. The Board determined that Petitioner was unjustly deprived of the opportunity to defend herself against the alleged misconduct resulting from the purported positive urinalysis. The Board found that the urinalysis results, any documentation referencing the positive urinalysis, and any subsequent documents pertaining to the administrative separation proceedings should be removed from her record. Furthermore, the Board determined that Petitioner was unjustly deprived of the opportunity to complete her enlistment period. Accordingly, the Board determined that she should be issued new discharge documents reflecting her separation from the naval service at the end of her enlisted reserve obligation, with an honorable characterization of service, an appropriate SPD code, and an RE-1. In view of the above, the Board directs the following corrective action. That Petitioner be issued an updated discharge document to show she was discharged from the Navy Reserves on 21 March 2016 with an honorable characterization of service, on the basis of completion of her reserve enlistment obligation, with an appropriate SPD code, and that she received an RE-1. That Petitioner’s record be corrected to remove any documents reflecting the urinalysis results, any documentation referencing the positive urinalysis, and any subsequent documents pertaining to Petitioner’s administrative separation proceedings. That a copy of this report of proceedings be filed in Petitioner’s naval record. That, upon request, the Department of Veterans Affairs be informed that Petitioner’s application was received by the Board on 1 November 2017. 4. It is certified that 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 Regulation, 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 reference (a), has been approved by the Board on behalf of the Secretary of the Navy. Sincerely, 6/5/2019