DEPARTMENT OF THE NAV
BOARD FOR CORRECTION OF NAVAL RECORDS

Y

2 NAW ANNEX

WASHINGTON DC 20370-5100

AEG
Docket No. 2442-99
5 November 1999

From: Chairman, Board for Correction of Naval Records
To:

Secretary of the Navy

Subj: REVIEW OF

AL RECORD OF

Ref:

(a) 10 U.S.C. 1552

Encl: (1) Case Summary

1. Pursuant to the provisions of reference (a), Petitioner, a
former midshipman at the Naval Academy, applied to this Board
requesting, in effect, that his naval record be corrected to show
that he was not required to reimburse the government for the cost
of his education at the Academy.

2. The Board, consisting of Messrs. Brezna, Dunn and Taylor,
reviewed Petitioner's allegations of error and injustice on 2
November 1999 and, pursuant to its regulations, determined that
the corrective action indicated below should be taken on the
available evidence of record.
the Board consisted of the enclosure, midshipman records,
documentation from the Navy Inspector General, and applicable
statutes, regulations and policies.

Documentary material considered by

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. Petitioner's application to the Board was filed in a

timelydmanner.

C . Petitioner began his service at the Naval Academy in July

1993, but a medical discharge in November 1993 required that he
be readmitted in July 1994,
of 1998.
Petitioner signed an agreement to serve which reads, in part, as
follows:

At the time of his admission and readmission,

thus making him a member of the Class

In accordance with Title 10 U.S. Code, Section 6959 and
2005, I hereby agree:

that I will complete the course of instruction at the
Academy (which includes, but is not limited to,
satisfactorily achieving the required standards of

performance in Academics, Conduct, Honor, and Military
Performance [aptitude] until the time of appointment as
a commissioned officer)

 

. 

. 

.

Furthermore, if the Secretary of the Navy (SECNAV)
determines that I breached this agreement, (SECNAV) may
transfer me . . . to the Naval Reserve or Marine Corps
Reserve, and may order me to active duty for
exceed four years  
because of misconduct fail to complete a period of active
duty specified above, I will
the United States for the cost of education provided me.

. Additionally, if I voluntarily or

. be required to reimburse

. not to

 

 

. 

. 

. 

. 

. 

. 

d. Petitioner then served satisfactorily at the Academy for

nearly three years.
issue, Petitioner was serving as the president of his class, had
been detailed as a company commander for the upcoming Plebe
Summer, and was to be a battalion commander during the first
semester of his first class year.

It appears that at the time of the events at

e. On 9 April 1997 a Midshipman (MIDN) W submitted a

statement alleging that Petitioner had made homosexual advances
to him and several other midshipmen.
Commandant of Midshipmen appointed a Lieutenant (LT; O-3)  
conduct a preliminary inquiry into these allegations.

One day later, the

McM to

f. During this investigation, Petitioner secured the

assistance of military counsel, LT Ha.
On 5 May 1997 LT Ha
submitted a letter alleging improprieties on the part of the
Commandant's legal advisor,
That letter reads, in part, as follows:

Lieutenant Commander (LCDR; O-4)  

McC.

(McC) be removed from

These statements regarding separation

I respectfully request that LCDR  
providing legal advice in this case. (He) has become
personally involved in this case and as a result can no
longer objectively evaluate the completed investigation.
LCDR 
(McC) has made numerous statements in support of the
position that (Petitioner) will be separated as a result of
these allegations.
were made before the conclusion of the investigation,
before any matters were submitted on behalf of
(Petitioner), and before any separation hearing was held in
this case.
decision has already been made by LCDR  
conclusion of the investigation and prior to the
presentation of evidence at a proper hearing.
I request that a new legal advisor be appointed to
represent the interests of the Commandant's Office in this
case.
(Petitioner) are protected with respect to the on-going
conduct investigation.

This action will ensure that the rights of

Clearly, these statements suggest that a

(McC) prior to the

Accordingly,

Additionally, on or about
contacted CDR (Commander;

29 April 1997, LCDR  
(McC)
O-5) (S) of the Counseling

Center

2

. 

. 

LCDR 

(McC) had

CDR (S) is the head of the
. Although the intent of
the perception is that LCDR

In a conversation I had with CDR (S) on 1 May
(McC) called

regarding the case of (Petitioner).
information to believe that CDR (S) was providing personal
counseling to (Petitioner).
Midshipman Counseling Center  
this telephone call is unknown,
(McC) contacted CDR (S) in an attempt to influence the
decision of (Petitioner) regarding the issue of a
resignation.
1997 CDR (S) stated that in his opinion LCDR
 
in an attempt to influence the advice he gave to
(Petitioner) regarding the issue of a resignation. This
contact is particularly troubling because of the protected
nature of the counseling relationship between CDR (S) and
(McC) has
(Petitioner). Once again,
already reached a conclusion in this case that (Petitioner)
should be separated or resign from the Naval Academy.
Although these actions have not resulted in any undue
influence being exerted on (Petitioner), continued involved
(sic) by LCDR  
(McC) will likely prejudice the rights of
(Petitioner) with respect to the administrative conduct
system.

it is clear that LCDR  

The record reflects that counsel's request was granted and a LT
Ho, the Staff Judge Advocate of Naval Station, Annapolis, was
designated to provide legal advice to the Commandant on
Petitioner's case.

g* LT 

McM's inquiry took longer than expected and on 6 May

McM, he submitted an interim report

1997, at the request of LCDR  
in which he ventured a "current, but preliminary, legal opinion"
that sufficient probable cause existed to justify further action
The record indicates that on or about 22 May
against Petitioner.
1997, Captain (CAPT) F, the Deputy Commandant, removed Petitioner
from his positions of responsibility, pending disposition of his
case.

h. On 27 May 1997 LT 

McM submitted the report of his
preliminary inquiry, which stated that many of the allegations of
MIDN W were substantiated and further action was warranted.
McM found probable cause that Petitioner had
Specifically, LT 
solicited sodomy on three occasions and solicited two indecent
acts, committed an indecent act and used indecent language, all
in violation of Article 134 of the Uniform Code of Military
Justice (UCMJ); used provoking speech on two occasions, in
violation of UCMJ Article 117;
and battery or indecent assault,
or 134; made a false official statement, in violation of UCMJ
Article 107; committed sexual harassment, in violation of UCMJ
Article 92; and had disobeyed various Academy regulations on four
However, on 29 May 1997 LT Ho advised the Commandant
occasions.
sufficient evidence existed only to support
that in his opinion,
indecent language, one specification of provoking speech, two
instances of assault and battery, false official statement,

committed two incidents of assault
in violation of UCMJ Article 128

3

sexual harassment and three
regulations.

instances of failure to obey Academy

i. On 27 May 1997, the same day LT 

McM submitted his report

The only stated reason for such action was his

"my educational needs and goals would be better met

of investigation, Petitioner submitted a voluntary resignation
form the Academy.
belief that  
by attending a civilian institution."
resignation, Petitioner neither mentioned the allegations of
homosexuality nor admitted that he is a homosexual.
the resignation package,
Understanding which reads, in part, as follows:

Petitioner executed a Statement of

In his letter of

As part of

As a result of commencing their second or first class
academic years, midshipmen may, at the election of
(SECNAV), be required to serve  
service 
determines that the midshipman's misconduct renders him
unsuitable for service, (SECNAV) may require the midshipman
to reimburse the government for the cost of education
received at the Naval Academy.

. to satisfy their obligation.

. active enlisted

If (SECNAV)

. 

. 

. 

. 

By separate correspondence,
of his education at the Academy was  
waiver of both the active duty service obligation and the
reimbursement requirement.

Petitioner acknowledged that the cost

$66,717.68,  and requested a

j. During the period 29 May to 6 June 1997 a number of
Academy officials in Petitioner's chain of command submitted
informal recommendations concerning the appropriate disposition
of his resignation request.
Several of these individuals cited
the investigation as a significant factor in their decision not
to recommend further military service or officer training.
Additionally, the Deputy Commandant recommended against accepting
the voluntary resignation in favor of the less favorable
qualified resignation normally submitted when a midshipman is
facing charges of misconduct.
recommended acceptance of the voluntary resignation  
sensitivity 
Superintendent of the Academy recommended to the Chief of Naval
Personnel (CNP) that Petitioner's resignation be accepted, and
that he be required to reimburse the government for the cost of
his education in lieu of active enlisted service.
the Chief of Naval Operations and CNP favorably endorsed these
recommendations.

Accordingly, on 12 June 1997 the

However, the Commandant

reasons.1l

Subsequently,

"for

k. On 14 July 1997 Petitioner submitted a letter to the

Assistant Secretary of the Navy for Manpower and Reserve Affairs
(ASN/M&RA) in which he elaborated on his request for waiver of
monetary recoupment.
allegations made against him,
administration at the Naval Academy and the lack of objectively
shown in my case made it impossible for me to overcome  
allegations regarding the issue of  

He stated that he was innocent of the
"the actions taken by the

homosexuality.1V

He further

but 

the. untrue

4

alleged that regardless of the outcome of a hearing on the
charges against him,
demonstrated by the Commandant's Staff
for me to continue to be a midshipman."
follows that his resignation had been coerced:

"the clear feeling of 'homophobia'

. 
. 
He then alleged as

. make it impossible

 

LCDR 

McM's) investigation.

(McC) initially tried
The Commandant's legal advisor,
to convince me, against my better judgment, to resign prior
(McM)
LCDR 
to the conclusion of (LT  
stated I would be separated from the Naval Academy as a
result of the allegations of homosexuality.
(McC) on or about 18 April 1997, I would consider
He stated to me the Administration would accept
resigning.
my voluntary resignation and would support a recommendation
that recoupment be waived and the investigation would be
concluded because they considered me an asset to the
Brigade (of Midshipmen)

I told LCDR

 

. 

. 

.

After speaking with my counselor, CDR (S), and the
midshipman legal advisor LT (Ha),
Upon receiving the news that I was having a change of
heart, LCDR  
CDR (S).
attempt‘to  pressure me into resigning by influencing the
advice given to me by CDR (S).
LT-(Ha) to have LCDR  
his lack of objectivity.

A request was then made by
(McC) removed from the case because of

The telephone call to CDR (S) was made in an

(McC) made two telephone calls to LT (H) and

I decided not to resign.

LCDR 
(McC) stated in order to get the support to have the
recoupment waived I would have to write in my resignation
that I 
that I did not want to leave the Naval Academy and would
not resign because I am not homosexual, he insisted that
the investigation would continue and that I was wrong not

When I stated on or about 24 April

was.homosexual.

. 

. 

.

to resign

 

Petitioner also alleged that he was relieved of certain positions
of responsibility on the basis of the allegations of
homosexuality prior to the completion of the investigation, and
without any sort of due process.
of the issue of homosexuality,
receive a fair and impartial conduct hearing at any  

it was impossible for me to

He also contended that "because

level."

1. On 14 August 1997 

letter, in part, as follows:

ASN/M&RA responded to Petitioner's

I am not inclined to grant your

After a preliminary review,
request for waiver of monetary recoupment.
statute, recipients of advanced educational assistance are
required to reimburse to the United States the monetary
assistance if they either voluntarily, or because of
misconduct, fail to complete the required active-duty
period specified in the written agreement signed by the
recipient.

Because you have submitted a voluntary

Per federal

5

resignation request of your own accord, recoupment in your
case is warranted

 

. 

. 

.

wissues of homosexuality" in your
is not, in itself, sufficient grounds for waiver of

The fact that there are
case,
recoupment.
authorized in cases involving homosexual conduct when the

Like other separation cases, recoupment is

member has failed to complete his service either

voluntarily or because of misconduct. A statement by a
member declaring his homosexuality would not alone
constitute a basis for recoupment; however, recoupment
would be appropriate if the statement was voluntarily made
for the purpose of seeking separation from the naval
service.
appropriate where the homosexual conduct would warrant a
discharge characterization of Under Other Than Honorable
Conditions, or the conduct is punishable under the UCMJ.

Recoupment under misconduct grounds would be

If, as stated in your letter, you believe your resignation
was "forced  
@I you may at this time submit a request asking
that your  
r&ignation  be withdrawn  
. The charges
against you will be handled under the Academy conduct
system, and despite your reluctance to have your case
adjudicated by Academy officials,
would receive a fair and impartial hearing.
The conduct
system is the established process in which to consider the
charges against you; it would not be proper for me to
circumvent this process absent clear evidence that your
case would not receive a fair review.

I can assure you that you

. 

. 

5

ASN/M&RA stated that Petitioner's case would be held

Petitioner was advised that if no such request

Accordingly;
in abeyance for 30 days to give him an opportunity to withdraw
his resignation.
was received by that time,
a final determination would be made
regarding the resignation and request for waiver of recoupment.
Additionally, Petitioner was notified that his allegations
against Academy officials would be investigated by the Navy
Inspector General (NIG), but that a decision in his case would
not be postponed pending completion of the investigation.

m. On 10 September 1997 Petitioner sent another letter to

ASN/M&RA requesting waiver of recoupment. In this letter, he once
again argued that he could not get a fair hearing at the Academy
on the charges against him.
innocence of these charges, stating that they  
in nature," and the alleged victims of his behavior  
joking 
equal and more egregious acts  
Petitioner also requested that  
be permitted to serve in an enlisted status since he was not
homosexual.

and.he is still a 
if,a payback was appropriate, he

He further contended that MIDN W  

He also continued to protest his

@'committed
Midshipman.1l

"were not serious

mariner...

"took it in a

n. On 23 September 1997  

ASN/M&RA approved the recommendation

that Petitioner's resignation be accepted and he be required to

6

reimburse the government for the cost of his education.
Accordingly, Petitioner was honorably discharged from the Academy
on 25 September 1997.

o. On 16 October 1997  

ASN/M&RA replied to Petitioner's 10

September 1997 letter.
of the comments in his earlier response and also stated, in part,
as follows:

ASN/M&RA reiterated some

In his response,

. 

. You were provided ample opportunity to withdraw your

. 
resignation request and confront the allegations made
against you  
request, I approved your resignation.
voluntary nature of your request,

. When you elected not to withdraw your

recoupment is warranted.

Because of the

. 

. 

Monetary recoupment is the predominant method imposed to
repay incurred educational expenses in cases involving a
midshipman's conduct.
circumstances surrounding your case, I have determined that
fulfillment of your obligation through active enlisted
service is considered not in the best interest of the U.S.
Navy.

Based on my review of the complete

p. On 24 November 1997 NIG completed its report on

Petitioner's case.
with LCDR 
pressure Petitioner into resigning from the Academy:

McC concerning the allegation that he attempted to

The report documented as  

fol,lows an interview

(McC) said that he had known (Petitioner) for about a

LCDR 
year before he became the subject of the allegations of
After MIDN (W) made his allegations and
MIDN (W).  
(Petitioner) knew that he was under investigation,
(Petitioner) began visiting LCDR  
times a day, wanting to know what was going to happen.

(McC) as often as several

. 

.

(McC) had been monitoring the progress of the

LCDR 
investigation, and by 18 April 97, he knew that the
investigating officer had obtained (Petitioner's)
incriminating e-mail and that (Petitioner) had made three
separate sworn statements to the investigating officer.
Further, in one of those statements, (Petitioner) admitted
that he had not been kidding when he told MIDN (W) that he
wanted to perform oral sex on him.
visited LCDR  
resign, LCDR  
LCDR 
hand, the "handwriting was on the  
get worse as the investigation continued, i.e., other
individuals and incidents would probably come to light. He
emphasized that there were more options available to
(Petitioner) before the investigation was completed and
charges were referred.
that he was viewed as a "good  
support for waiving recoupment in his case.

(McC) on 18 April and said that he wanted to
(McC) agreed that that was a good decision.

(I&C) told (Petitioner) that given the evidence in

In addition, he told (Petitioner)

guy" and that there was

wall," and it could only

Thus, when (Petitioner)

7

When he returned, he learned that

(McC) went on leave right after his 18 April meeting

LCDR 
with (Petitioner).
recoupment could not be waived unless (Petitioner) admitted
He called (Petitioner) in and gave him this
homosexuality.
information.
called LCDR  
fight the case against (Petitioner).
(Ha), "attorney to attorney,
that (Petitioner) had already admitted his homosexual
conduct in one of his statements,and that it would be in
(Petitioner's) best interest to work something out.

(Petitioner) then went to see LT (Ha), who

(McC) and told him that they were going to

" that the evidence was clear,

(McC) told LT

LCDR 

LCDR 

Afterward, LCDR  

McC) that he wasn't

(McC) back-briefed the

(Petitioner) told LCDR  

had.met with CDR (S) in the

They were concerned that (Petitioner) had changed

The same day,
going to resign and that he  
Midshipman Counseling Center.
Commandant and Deputy Commandant on developments in the
case.
his mind, as they believed resigning was the best course of
action.
the case.
involvement with Midshipmen had a degree of
confidentiality, so the transmission of information was
only one-way, from LCDR  
didn't know what (Petitioner) had told CDR (S), but wanted
CDR (S) to know what the evidence was against (Petitioner)
and to let him know that it would be in (Petitioner's) best
interest to resign, before the investigation was completed
and while that option was still available.

(McC) called CDR (S) to discuss
CDR (S's)

They had spoken many times before.

(McC) to CDR (S).

LCDR 

(McC)

When LT (Ha) subsequently, lodged his request that LCDR
(McC) be removed from his advisory role, LCDR
aside and had no further involvement with the case.

 

(McC) stepped

If the evidence indicated that charges would

LCDR 
(McC) stated that while serving as Legal Advisor, he
always tried to do what was right for the school and the
Midshipman.
be brought and most likely sustained, he advised Midshipmen
to resign in advance of the conduct action, while that
option was still open.
intimidate them, nor was he doing  
objectivity.
When he expressed an opinion as to someone's
guilt, he was speaking on.knowledge of the evidence in the
case.

He stated that he wasn't trying to

so,due to a lack of

q. Also in connection with the allegation against LCDR  

NIG discussed recoupment as follows:

McC,

Recoupment is the norm when a First (Senior) or Second
Class (Junior) Midshipman voluntarily resigns.
granted on a case by case basis and are a matter within the
discretion.of the Secretary of the Navy (whose delegated
authority in these matters is normally ASN [MCRA]).
memo of 17 May 1994,

the Deputy Secretary of Defense

In a

Waivers are

8

(DEPSECDEF) issued guidance for recoupment in cases
involving homosexual conduct, which was defined to include
homosexual acts, a statement by the member that
demonstrates a propensity or intent to engage in homosexual
acts, or a homosexual marriage or attempted marriage.

. 

. (Petitioner) was separated by reason of his voluntary

. 
resignation and not by reason of homosexual conduct. As a
result, recoupment was authorized.
decision with the benefit of advice from counsel and with
full understanding of the implications of his request.
decision not to trust the (Academy) administrative process,
with the knowledge that recoupment was likely, was made
voluntarily and was not the product of any improper
influence by LCDR  

(Petitioner) made his

(MoC).

His

r. NIG recorded as follows the response of CAPT  

allegation that Petitioner was improperly of his leadership
positions without due process:

F.to the

. 

. 

. stated that the decision to relieve

CAPT (F)  
(Petitioner) of his various duties.was reached in
consultation with the Commandant and the Legal Advisor.
(Petitioner) was a very visible Midshipman, and they were
concerned for his privacy as well as for the well being of
the rest of the brigade.
Their primary concern was that
given the very serious findings of the preliminary
investigation, they were anticipating preferring charges
and switching over to a conduct case involving additional
investigation, as well as an effort by (Petitioner) to
He held several very sensitive
defend against the charges.
leadership positions which they did not believe he would be
able to be effective in, once charged, because he would be
too busy trying to defend himself.
not believe he should be allowed to serve as a Plebe
Company Commander
given the pressures that he and the new Plebes would be
under during Plebe Summer and the distraction that his
conduct problems would be with respect to his ability to be
effective in such a position.

. during the upcoming Summer Detail,

In particular, they did

 

. 

. 

CAPT (F) stated that relieving a Midshipman of duties in
cases such as this was standard operating procedure in his
experience at (the Academy).

 

. 

.

allegation.against  CAPT F was unsubstantiated

NIG found that the  
since he had acted within his authority.
is not unusual for the subject of an investigation involving
allegations of serious misconduct to be temporarily relieved of
duties pending the outcome of the investigation."

NIG also noted that "it

9

S . On 25 November 1997 NIG submitted a memorandum to

ASN/M&RA with the report of investigation into Petitioner's
allegation.
"acted appropriately and within the scope of their authority in
(Petitioner's) case."

In its memorandum, NIG stated that Academy officials

t. In April 1994, about three years prior to Petitioner's
discharge, the Secretary of the Navy (SECNAV) directed that 24
members of the class of 1994 be discharged from the Academy.
These midshipmen were involved in a cheating scandal in which
they received illicit advance copies of the Fall 1992 Electrical
Additionally, many of them lied
Engineering (EE) examination.
about their misconduct during the ensuing investigations.
However, because of the length of time it took to complete the
investigations and discharge processing, SECNAV waived the
requirement that these individuals either serve in an enlisted
Senior Navy officials
status or reimburse the government.
cautioned, however, that waiver "should not be looked at as
something that will happen again in the future."
Final Decision Made:
29, 1994, at 

24 Mids to be Expelled, 

John Fairhall,
Baltimore Sun, Apr.

lB, 

9B.

u. About a year after Petitioner was discharged, in 1998,
the national media reported that SECNAV had reversed an earlier
action and waived monetary recoupment in the case of a former
midshipman discharged for using LSD.
that this reversal occurred after a United States Senator held up
the confirmation of a civilian official for another position
because of the Senator's belief that recoupment was
inappropriate

It was further- reported

.

v. The DEPSECDEF memorandum of 17 May 1994 which was cited

in the NIG report of 24 November 1997, states, in part, as
follows:

Questions have been raised regarding how the
policy on homosexual conduct effects recoupment under the
such as section 2005 of title 10
various statutes  

. current

. that provide for recoupment where the member

~vol‘untarily  or because of misconduct" fails to complete
his or her term of service

 

 

.. 

. 

. 

. 

. 

. 

.

. 

. 

.

Homosexual conduct is grounds for separation under the
current policy . . . Not all homosexual conduct, however,
constitutes a basis for recoupment under provisions such as
section 2005
. Homosexual conduct constitutes a basis
for recoupment under such provisions if a characterization
. is
of Under Other Than Honorable Conditions (UOTHC).
authorized or the conduct is punishable under the (UCMJ)

 

 

. 

. 

. 

This is the case whether or not the member is

&~lly separated (UOTHC) or is actually convicted under
the (UCMJ), but a specific written finding must be made

10

. 

. that, during the current term of service, the member
. 
engaged in homosexual conduct that constitutes a basis for
recoupment, as defined above.

(D)ecisions on recoupment in cases involving homosexual
conduct should be made in accordance with the guidance in
this memorandum.

‘W. In support of his application, Petitioner argues that

 

He further cites an
ASN/M&RA to support his assertion

monetary recoupment should be waived in his case because of the
unfair treatment he received at the Academy from LCDR
Commandant and other high-ranking officers.
18 August 1994 memorandum from  
that monetary recoupment in his case was contrary to SECNAV
However, that memorandum only proposes an "interim
policy.
and indicates that further
policy" on all recoupment cases,
discussions would be held prior to the actual implementation of
such a policy.
Petitioner further contends that it was unfair to
direct such action in his case given the waivers in certain other
cases, including'but not limited to the individuals discharged in
connection with cheating on  
midshipman separated for using LSD.
his advances toward MIDN W were unwelcome.

the_EE-311 examination and the

He also asserts that none of

McC, the

CONCLUSION:

Upon review and consideration of all  
Board concludes that Petitioner's request warrants favorable
Specifically, the Board concludes that requiring'
action.
monetary recoupment was contrary to the DEPSECDEF memorandum of
17 May 1994.
direct recoupment in Petitioners' case with the waiver of such
action for the individuals discharged for cheating on the EE-311
examination and using LSD.

Further, the Board cannot reconcile the decision to

the,evidence  of record, the

McC during the

McC's involvement in the case was cured when

The Board finds no merit in Petitioner's contention that he was
prejudiced by unfair treatment from officials at the Academy.
Although the record shows that individuals at the Academy treated
Petitioner fairly, certain actions of LCDR  
processing of his case are troubling.
prejudice from LCDR  
ASN/M&RA offered Petitioner the opportunity to withdraw his
resignation and contest the allegations against him through the
Academy's administrative conduct system.
However, the Board agrees with Petitioner that the real reason
for his resignation and ensuing discharge was his homosexuality
and, accordingly, requiring him to reimburse the government for
the cost of his education at the Academy violated the DEPSECDEF
policy letter of 17 May 1994.
initially notes that both the service agreement Petitioner signed

In this regard, the Board

However, any possible

11

S 2005 authorize recoupment in the form of enlisted

and 10 U.S.C.  
service or monetary payback for individuals who fail to complete
the course of instruction at the Academy.
Further, such action
is normally directed in the case of an individual who resigns
from the Academy and is discharged after beginning the second
class year.

Further, he

However, the DEPSECDEF memorandum

Such factors are not present here.

It is also clear to the Board that the charges against Petitioner
were based mainly on alleged homosexual conduct.
obviously resigned due to those allegations, even though his
letter of resignation does not specifically mention those charges
or his homosexuality.
indicates that an individual discharged for homosexuality should
be subject to recoupment only if certain aggravating factors
exist.
UCMJ was taken or even contemplated against him.
not only was Petitioner discharged honorably and not UOTHC, he
was permitted to submit the most favorable kind of resignation,
which resulted in the former characterization.
There was no
finding of any aggravated homosexual behavior.
Accordingly, the
Board believes that directing recoupment was inappropriate in
Petitioner's case.
relies on the
DEPSECDEF memorandum and not the memorandum of 18 August 1994
from 
policy.

ASN/M&RA since the latter only proposes a possible interim

No action under the
Additionally,

In this regard, the Board

Such misconduct strikes at the heart

The Board also takes the position that Petitioner was treated
unfairly when compared to the midshipmen discharged in 1994 for
cheating on the EE examination,
and the individual discharged in
1998 for drug use.
Concerning the cheaters, the Board notes that
their misconduct was aggravated due to the premeditation involved
in using illicitly obtained copes of an examination, and because
at least some of them lied about their actions during the
subsequent investigations.
of the honor system at the Academy since these midshipmen were
involved in lying, cheating and stealing, all honor offenses.
The Board is also aware of recoupment was waived for the cheaters
because of the length of time it took to complete the
investigation and not because the misconduct did not warrant such
action...
rationale may explain the disparate treatment, it does not
justify that treatment.
political considerations may have caused the decision to waive
recoupment in the case if the individual discharged due to LSD
use.
Navy's "zero tolerance" policy on drug abuse, and routinely
results in a UOTHC discharge for officers and enlisted personnel.
Accordingly, the Board does not believe that political
considerations justified an exception to policy in that case. In
sum, the Board cannot justify recoupment in Petitioner's case
given the favorable action in these other cases.

However, such misconduct is a blatant violation of the

However, the Board concludes that although this

Likewise, the Board is aware that

In view of the foregoing,
the Board finds the existence of both
error and injustice warranting the following corrective action.

12

RECOMMENDATION:

a. That Petitioner's naval record be corrected to show that
ASN/MfRA accepted Petitioner's resignation

on 23 September 1997  
and directed his discharge from the Academy, but waived the
requirement that he reimburse the government for the cost of his
education at the Academy.

b. That a copy of this Report of Proceedings be filed in

Petitioner's naval record.

4. It is certified that a quorum was present at the Board's
and that the foregoing is a true and
review and deliberations,
complete record of the Board's proceedings in the above entitled
matter.-

ROBERT D. ZSALMAN
Recorder

ALAN E. GOLDSMITH
Acting Recorder

5. The foregoing action of the Board is submitted for your review
and action.

Reviewed and approved:

.

13

DEPARTMENT OF THE NAVY

OFFICE OF THE SECRETARY

1000 NAVY PENTAGON

WASHINGTON, D.C. 20350-1000

MAR I 3 2000

MEMORANDUM FOR THE EXECUTIVE DIRECTOR, BOARD FOR CORRECTION OF

NAVAL RECORDS

Subj:

L RECORD OF

t

I have considered the recommendation of the Board for

Correction of Naval Records (BCNR) that petitioner's record be
corrected to waive the requirement that he reimburse the
government for the cost of his education at the U.S. Naval
Academy.
disapproved and relief is denied.

For the reasons stated below, the recommendation is

First,

The BCNR based its recommendation in favor of relief on two
the BCNR determined that recoupment in

considerations.
petitioner's case would violate the 17 May 1994 Under Secretary
of Defense memorandum on recoupment in homosexual conduct cases.
Second,
expenses from petitioner in light of prior SECNAV actions
waiving recoupment in the 1994 EE 311 cheating scandal cases and
in a 1998 case involving drug use.

the BCNR concluded that it would be unfair to recoup

With respect to the first point,

recoupment in this case is
That

entirely consistent with the 17 May 1994 USD memorandum.
memorandum restates the rule that recoupment is authorized when
an individual voluntarily or through misconduct fails to
complete a period of obligated service.
BCNR makes it abundantly clear that petitioner left the Academy
voluntarily and elected to forego his right to contest the
charges against him.
my predecessor offered petitioner an additional
resignat,ion,
opportunity to challenge the Academy's charges, but he declined
to do so.
from 
Consequently,
May 1994 USD memorandum do not apply.

the  Academy can only be deemed to be voluntary.

the limitations on recoupment set out in the

Even after petitioner submitted his

 

Under these circumstances,

petitioner's separation

The record before'the

Second,

the fact that the Department of the Navy waived

recoupment in certain other Naval Academy cases does not require
that it waive recoupment in this case or any other cases.
determination whether to recoup educational expenses is based
upon the individual circumstances of each case, considering the
individual's situation and the interests of the Department.

17

The

The

not at all comparable to

The Department has consistently

circumstances in petitioner's case were
the cases cited by the BCNR.
applied a policy of recouping educational expenses when a
midshipman leaves the Academy voluntarily or a result of
misconduct and of waiving recoupment only in exceptional
Petitioner's case was decided in a manner
circumstances.
consistent with that policy and it was a proper exercise of
discretion to conclude that a waiver of recoupment was not
warranted.
relief.

Accordingly,

I find no error or injustice warranting

(Manpower and Reserve 

Affzirs)

Y
DEPARTMENT OF THE NAV
BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAW ANNEX

WASHINGTON DC 203704100

AEG:jdh
Docket No: 2442-99
22 March   2000

196 DUKE OF GLOUCESTER STREET
ANNAPOLIS MD  

2140 1

Dear Mr. Ferris:

This is in refe
Mr

our interest, as Attorney, in the case of

Enclosed is a copy of a letter to Mr.-informing him that
his application has been denied.
the denial letter to him,
records.

a copy of which is enclosed for your

It is requested that you transmit

It is regretted that a more favorable reply cannot be made.

Sincerely,

W. DEAN PFEIFFER
Executive Director

Enclosures