Just like every member of the military – including the brand new E-1 – Navy SEALs have to take random urinalysis at least once per year. Last week, it was widely publicized that ten enlisted Navy SEALs and a Naval Special Warfare support Sailor popped positive for controlled substances in drug tests and now face separation the Navy.
Based on the media reports, it’s unlikely that the commander for these special warfare members has “unsubstantiated” the positive urinalysis, meaning that the commander has determined by competent evidence that the positive result was not an incident of drug abuse. However, even though the command has not unsubstantiated the positive results, whether these members will actually be separated is yet to be determined because each is entitled to an administrative separation board.
A positive military drug test requires one of two things occur: either the commander must unsubstantiate the test result or the commander must process the member for administration separation using the board procedure. The board procedure means that the individual will get an administrative separation board – an administrative hearing before at least three members who will determine if the positive drug test was the result of unlawful use of an illegal or controlled drug; if yes, to recommend whether the member should be separated, retained, or given a period of rehabilitation (suspended separation); and, if separation is recommended, to recommend a characterization of service (Honorable, General, or Other Than Honorable).
An administrative separation board normally takes place 30 to 60 days after the positive drug test is reported. The member is entitled to legal representation at the hearing, who can present evidence, call or cross-examine witnesses, and make argument to the board members. An administrative separation board can last a few hours to a few days depending on the case.
If the board members find that the positive drug test result was not drug abuse, then the member is returned to full duty and cannot be separated from the military based on the positive drug test result.
Attorney Patrick Korody is a former active duty Navy JAG who has defended members of the Army, Coast Guard, Marine Corps, Navy, Air Force, and National Guard at administrative separation boards based on positive military urinalysis. He offers a free case evaluation and can be reached at (904) 383-7261.