Legal Question in Military Law in Colorado

Approx. 1 year ago I asked a question on this site and it was answered by Mr. William J. Holmes. it dealt with being seperated from the Navy reserves for positive urinalysis due to "Unknowing Ingestion" after 19 years of service. Since asking the question I've been through an ADSEP Board, which they found that I should be able to retire, however they seperated me with an Honorable discharge. When my package went forward to PERS, they said that I didn't have enough time in to retire and that they were going to proceed with my seperation. I submitted a package to the BCNR to overturn their decision and am currently awaiting results from my board request. My question now is, due you think that the board will allow me to retire with benefits? I've submitted all the required paperwork to include letters from the person who had the party where I ingested the tainted brownies along with other letters of character references. My total time in the military totaled 19 years 10 months. Upon being seperated I was trying to extend my enlistment by 2 months but was told by my reserve center that I had to wait the outcome of my seperation board and was not allowed to extend.


Asked on 12/06/11, 12:06 pm

1 Answer from Attorneys
William J. Holmes Attorney at Military Law

The ADSEP Board apparently concluded that you knowingly used marijuana which constituted misconduct but recommended retention nevertheless. If you did not knowingly use a drug, that is not a crime and a finding of no misconduct should have been reached. A finding of no conduct prevents any type of separation because there is no legal basis for it. Your board obviously did not reach this conclusion and found misconduct although they wanted you to be able to retire. PERS took it even further and ordered a discharge. Your issue on appeal is that there was no misconduct based upon an innocent and unknowing ingestion. If the Board accepts that finding, the discharge will be overturned and you will be restored to active duty where you will now be retirement eligible with ovwer 20 years.

I hope this has helped. If you have more questions, feel free to contact me directly at [email protected] or (757) 420-9321.

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Answered on 12/08/11, 12:46 pm


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