DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No. 4785-19 Ref: Signature Date From: Chairman, Board for Correction of Naval Records To: Secretary of the Navy Ref: (a) 10 U.S.C. § 1552 (b) MCO PI070.12K w/CH 1 (IRAM) (c) SECNAVINST 5300.28E (d) MCO 5300.17 (MARINE CORPS SUBSTANCE ABUSE PROGRAM) Encl:(1) DD Form 149 (2) Administrative Remarks (Page 11) counseling of 14 Nov 17 (3) Administrative Remarks (Page 11) counselings of 17 Jan 18 1. Pursuant to the provisions of reference (a), Petitioner, an enlisted member of the Marine Corps, .filed enclosure (1) with this Board, requesting that his record be corrected by removing three Administrative Remarks (Page 11) counseling entries (enclosures (2) and (3)). 2. The Board, consisting of reviewed Petitioner's allegations of error and injustice on 10 September 2019 and, pursuant to its regulations, determined that the partial corrective action indicated below should be taken on the available evidence of record. As noted below, the Executive Director believes that additional relief is appropriate. Documentary material considered by the Board consisted of the enclosures, relevant portions of Petitioner's naval records, and applicable statutes, regulations, and policies. 3. The Board, having reviewed all the facts ofrecord pertaining to Petitioner's allegations of error and injustice, found 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 14 November 2017, Petitioner was issued enclosure (2), a 6105 Page 11 entry counseling him for violating Article 112a of the Uniform Code of Military Justice for "wrongfully test[ing] positive on a urinalysis sample for Hydromorphone a prescribed medication without a valid prescription." Petitioner acknowledged the entry and elected not to submit a written rebuttal. c. On 17 January 2018, Petitioner was issued enclosure (3), a Page 11 with two counseling entries. One entry notified Petitioner that he was being processed for administrative separation. The second entry notified Petitioner that he was placed in a promotion restricted status due to pending administrative separation. On 23 April 2018, the recommendation for Petitioner's administrative discharge was disapproved. d. Reference {b) prohibits Page 11 counseling entries that concern administrative discharge proceedings if they do not, upon final review, result in discharge. CONCLUSION Upon review and consideration of all the evidence ofrecord, the Board concluded that Petitioner's request warrants partial relief. In this regard, the Board detennined that the two entries at enclosure {3) are in error. Specifically, both entries were issued due to Petitioner's administrative separation processing. Ultimately, he was not administratively separated, and pursuant to reference {b), the Board concluded the 17 January 2018 entries on the Page 11 at enclosure {3) shall be removed from Petitioner's official military personnel file (OMPF). The Board determined, however, that the 14 November 2017 Page 11 entry at enclosure {2) is administratively and procedurally correct as written and filed. The Board determined that it creates a permanent record of matters Petitioner's commanding officers deemed significant enough to document. Additionally, Petitioner had the opportunity to submit a rebuttal statement, but elected not to. The Board thus concluded that Petitioner did not present evidence sufficient to show that the entry is in error or unjust. RECOMMENDATION In view of the above, the Board recommends the following corrective action. Petitioner's record be corrected by removing enclosure (3), the Page 11 with two 17 January 2018 counseling entries. No further relief be granted. EXECUTIVE DIRECTOR CONCLUSION: Generally concurring with the findings and recommendation of the Board, the Executive Director nevertheless determined that additional corrective action is warranted in Petitioner's case, in consideration of references {c) and (d). The Executive Director noted that, after he was notified of administrative separation processing and acknowledged his rights, Petitioner waived his right to present his case to an administrative discharge board. His case was then presented to the separation authority with the recommendation of his battalion and regimental commanding officers (CO) that he be retained. In making such a recommendation, Petitioner's COs both explained that Petitioner merely misuse[d] ... a prescription drug that was not prescribed to him to treat an injury. [Petitioner] did not take the prescription drug to get high but to self-medicate. He was in great pain and was handed a pain pill by his spouse, with neither party realizing that it was a prescription medication. The Executive Director also noted that, under reference { c ), use of a controlled substance is not wrongful if done "[w]ithout knowledge of the contraband nature of the substance," and, under reference (d), "[t]he legality or illegality of drug presence in a Marine's urine [is] determined by the commander." Here, both Petitioner's battalion and regimental COs expressly determined that his use of the prescription medication done without knowledge of its contraband nature-that is, that it was not wrongful. The Executive Director determined that, in such circumstances, the Page 11 entry at enclosure (2) constitutes an injustice and should therefore be removed from Petitioner's record In view of the above, the Executive Director recommends the following corrective action. EXECUTIVE DIRECTOR RECOMMENDATION: Petitioner's record be corrected by removing enclosures (2) and (3)-the Page 11 with two 17 January 2018 counseling entries, and the 14 November 2017 Page 11 counseling entry, respectively. No further relief be granted. 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. The foregoing action of the Board is submitted for your review and action.