D E P A R T M E N T O F T H E N A V Y
BOARD FOR CORRECTION OF NAVAL RECORDS
2 N A W ANNEX
WASHINGTON DC 20370-5100
TRG
Docket No: 7500-98
2 September 1999
Dear 1
This is in reference to your application for correction of your
naval record pursuant to the provisions of title 10 of the United
States Code section 1552.
A three-member panel of the Board for Correction of Naval
Records, sitting in executive session, considered your
application on 31 August 1999. Your allegations of error 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, your naval record and applicable statutes, regulations
and policies.
After careful and conscientious consideration of the entire
record, the Board found that the evidence submitted was
insufficient to establish the existence of probable material
error or injustice.
Enclosed is a copy of the Board's letter, dated 13 July 1998,
informing you that your application was denied. The case is
being reconsidered based on your submission of your letter to the
Navy Military Personnel command, dated 3 May 1988. You contend
in that letter that you were never provided the form to request
an administrative discharge board (ADB) , your verbal request for
such a board was ignored, and you could not resolve this issue
because of your hospitalization following a suicide attempt. You
point out that if your case had been considered by the ADB, you
could have presented an evaluation from the Fitzsimons Army
Medical Center. The details of your service are set forth in the
Board's 13 July 1998 letter and will be addressed only as they
relate to the issues which resulted in reconsideration of your
case.
-
The evaluation from Fitzsimons Medical Center noted that you were
HIV positive and found a major situational reaction in response
to your knowledge of the HIV infection which was manifested by
suicide attempts and present anxiety with concomitant depression.
It was recommended that you be returned for follow-up at a Navy
medical center in three months for staging and reevaluation.
Subsequently, you were seen in a Navy psychiatric clinic on three
occasions and were found to have a personality disorder.
The evaluation from Fitzsimons Medical Center was forwarded to
the discharge authority as enclosure (10) to the commanding
officer's letter of 3 May 1988, which recommended your discharge.
Therefore, it was considered as part of the discharge package.
The Board noted that there is nothing in that evaluation or any
of the psychiatric evaluations done by the Navy to show that you
were not responsible for your actions. Therefore, disciplinary
and administrative separation actions appear to have been
justified in you case.
Concerning the issue that you were improperly denied the
opportunity to present your case to an ADB, the Board noted that
the commanding officer stated in his recommendation for
discharge, in part, as follows:
... Upon giving member the allotted time to respond to
the Notification of an Administrative Board Procedure
proposed Action, member failed to return the original
Statement of Awareness, and Request for, or Waiver of,
Privileges, therefore waiving all rights.
In addition, the commanding officer stated in his endorsement to
your letter of 21 June 1988, in part, as follows:
I
Subject member was properly informed of his rights
concerning his administrative discharge, and he
signified his understanding of those rights on the
"Notice of an Administrative Board Procedure Proposed
Action" dated 17 November 1997 .... In accordance with
normal practice the "Statement of Awareness and Request
for, or Waiver of Privilegesv1 was given to him at that
time so that he could take it to his meeting with
counsel. An appointment with defense counsel was made
for him; it is not known if he kept that appointment.
He was also specifically told several times to complete
the "Statement of Awareness" if he desired a board.
... As the dates in his letter show, his medical
treatment and unauthorized absences helped delay the
processing of his discharge. His processing has not
been conducted hastily in derogation of his rights. To
date, he has still never submitted a "Statement of
Awarenessv1 requesting a board.
-
The Board concluded that your failure to submit the "statement of
awarenessv1 was properly considered as a waiver of your right to
an ADB. The Board noted that the facts of your misconduct are
not in dispute and you could only have presented a case in
extenuation and mitigation. The Board concluded that your
discharge was proper as issued and no change is warranted.
Accordingly, your application has been denied. The names and
votes of the members of the panel will be furnished upon request.
It is regretted that the circumstances of your case are such that
favorable action cannot be taken. You are entitled to have the
Board reconsider its decision upon submission of new and material
evidence or other matter 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,
W. DEAN PFEIFFER
Executive Director
Enclosure
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NAVY | BCNR | CY2008 | 01582-08
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NAVY | BCNR | CY2006 | 02782-06
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NAVY | BCNR | CY1999 | 07033-98
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