DEPARTMENTOFTHENAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAW ANNEX

WASHINGTON DC 20370-5100

AEG
Docket No. 3943-99
1 September 2000

Your allegations of error and

Dear Mr.
This is in reference to your application for correction of your
naval record pursuant to the provisions of title 10, 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 29 August 2000.
injustice were reviewed in accordance with administrative
regulations and procedures applicable to the proceedings of this
Board.
Documentary evidence 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.
The Board also considered the advisory opinion and
legal analysis, dated 14 July 2000, furnished by the Deputy
Assistant Judge Advocate General (Administrative Law), copies of
which is attached.
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.
The Board found that you first enlisted in the Navy on 13 August
1979.
For the next 13 years you served well and were advanced to
the rate of chief sonar technician (E-7).
On or about 15 September 1992 you submitted a urine sample that
tested positive for methamphetamine.
Accordingly, at a special
court-martial held on 4 December 1992,
you were tried on a single
112a of the Uniform Code of
specification of violating Article 
Military Justice (UCMJ).
After you denied using drugs under oath
and introduced evidence that showed your good military character,
you were acquitted of the charge and specification.
1994 you reenlisted for five years.
On 30 November 1994 you once again submitted a urine sample that
tested positive for methamphetamine.
received nonjudicial punishment (NJP) for this violation of UCMJ
Article 112a.
per month for two months and restriction for 30 days.

Punishment extended to forfeitures of over $1,000

On 21 December 1994 you

On 6 May

On 25

December 1994 you submitted a lengthy statement to the commanding
officer (CO) in which you admitted to a history of drug use since
age 13 consisting of the intermittent use of marijuana, cocaine
and methamphetamine.
longer were in denial, and had received help from Narcotics
Anonymous.
Concerning the drug use that led to the earlier
court-martial, you stated as follows:

However, you also said that you were no

Two years ago I had my first positive urinalysis for
methamphetamine.
found not guilty.
had a problem.
celebrated with a line of meth  

I chose court-martial, denied it, and was
Even at this point, I did not realize I

was,found not guilty, I

The same day I 

. 

. 

.

You also

it."

l'was true, and I denied 

After considering the evidence,

In this testimony, you also admitted to

These individuals testified about your drug

Administrative separation action was then initiated by reason of
misconduct due to drug abuse based on the use of methamphetamine.
At an administrative discharge board (ADB), held on 8 March 1995,
evidence was introduced concerning your recent NJP.
testified concerning your career in the Navy, your drug use, and
the reasons for it.
stating that the allegation
perjuring yourself at the 1992 SPCM,
of methamphetamine use  
Other individuals also testified on your behalf, including your
wife, another member of Narcotics Anonymous, and several other
servicemembers.
problem and your efforts to overcome it, 'and your achievements in
the ADB found that you
the Navy.
had committed misconduct due to drug abuse as alleged and
recommended discharge under other than honorable conditions
(UOTHC). However, the ADB also recommended suspension of the
discharge for a probationary period of one year.
In an undated letter forwarding the case to the Chief of Naval
Personnel (CNP), the CO concurred with the findings and
recommendations of the ADB.
an unsuspended discharge UOTHC and,
separated.
Meanwhile, on 16 March 1995 the United States District Court for
the Northern District of California decided the case of  Rogers v.
Dalton, No.
court set aside the discharge of a Sailor who had been separated
for drug abuse and rationalized that decision as follows:
The binding policy of the Department of Defense (DOD)
concerning drug and alcohol abuse  
. is set forth at 32
. 
. 
. . 
DOD policy is to  
It 
.(5) Treat or
C.F.R. 
counsel alcohol and drug abusers and rehabilitate the
maximum feasible number of them; (6) Discipline and/or
discharge traffickers and those alcohol or drug abusers who
cannot or will not be rehabilitated  
(6), taken together provide that it is the intent
(5) and 
of the DOD to rehabilitate and retain the maximum feasible

However, on 6 June 1995 CNP directed

C-94-3388  EFL (N.D. Ca. 1995).

on 21 June 1995, you were so

. 

. 

.I1 Subparagraphs

In that case, the

5 62.4.

2

"zero 

Navy regulations

number of alcohol and drug abusers, and to discharge only
those traffickers and abusers who 
"cannot or will not be
rehabilitated."
Subsequent to the enactment of 32 C.F.R. 
S 62.4, the Navy
directives and instructions which
promulgated regulations,
S 62.4.
conflict with 32 C.F.R. 
MILPERSMAN (Naval Military Personnel Manual) 3630620 and
OPNAVINST (Chief of Naval Operations Instruction) 
as modified by NAVADMIN (Naval Administrative Message)
tolerancel'  drug policy by requiring
18/92 create a
mandatory processing for separation of all first time drug
offenders, and provide no opportunity for rehabilitation
and retention to be considered.
The DOD Directive establishes a policy whereby individual
services are to implement regulations and procedures which
provide for an evaluation of drug abusers' potential for
rehabilitation prior to discharging them.
MILPERSMAN regulations governing the (ADB) proceedings do
not require the (ADB) to make such a finding, and no such
fining was made by the (ADB) in (the plaintiff's case.
Navy's failure to follow DOD policy by discharging (the
plaintiff) without considering his potential for
rehabilitation denied (him) due process of law.

The Navy

5350.4B,

The

S 62.4 'were codified in

However, 32 C.F.R. 62.4, as it
The

The cited provisions of 32 C.F.R.  
Dl of DOD Directive (DODDIR) 1010.4 of 25 August 1980.
paragraph 
On 18 January 1996 the Director of Correspondence and Directives,
ordered that the directive be modified by
Department of Defense,
The
deleting the requirement to rehabilitate drug abusers.
change was effective immediately.
is set forth in the  Federal Register,   has not been modified.
January 1996 change was embodied in the new DODDIR 1010.4 of 3
September 1997.
Meanwhile, on 31 March 1997 you filed suit in the United States
District Court for the Southern District of California,
essentially alleging that your discharge failed to pass
constitutional muster for the reasons set forth in  Rogers, supra.
On 2 December 1997 you and the Navy settled the case and agreed
that the discharge would be set aside and you would be restored
to duty,
Both parties
administrative reprocessing for drug abuse  
It
. 
to the litigation also agreed that the settlement 
constitute an admission of liability on the part of the United
States, 
of compromising disputed claims and avoiding the expenses and
risks of litigation."
Consequently, on or about 18 May 1998, you were reinstated in the
Navy.
initiated by reason of misconduct due to drug abuse as evidenced
by your 1994 violation of UCMJ Article 

. and is entered into by both parties for the purpose

On 13 July 1998 administrative separation action was

"with the understanding that (you are) subject to

112a, as provided for in

"shall not

. 

. 

. 

. 

3

That

During the ADB, you presented

No other information, such as the original
S 62.4, was

and by reason of misconduct due to
MILPERSMAN Article 1910-146;
commission of a serious offense as evidenced by your perjury at
the December 1992 court-martial, in violation of UCMJ Article
131, as provided for in MILPERSMAN Article 1910-142.
You once again elected to present your case to an ADB, which met
on 5 August 1998.
Among the exhibits introduced by the recorder
to the ADB was a copy of MILPERSMAN Article 1910-212.
article states that in making the decision to whether to separate
or retain an individual, the ADB and separation authority should
consider the seriousness of the offense and likelihood of a
recurrence, and the individual's potential for further service
and military record.
or modified versions of DODDIR 1010.4 or 32 C.F.R. 
presented to the ADB concerning the policy on rehabilitation and
retention of drug abusers.
evidence of past achievements during your Navy career.
Testimony
and statements were also received from a number of individuals
who opined that you had potential for further service.
Several
of these individuals had experience or training in advising and
counseling drug abusers.
After considering the documentary evidence and testimony, the ADB
found that you had committed misconduct due to drug abuse and
commission of a serious offense as alleged.
separation because
and further recommended a characterization of UOTHC.
letter of 19 August 1998 concurring with the 
recommendations, the CO noted that 
the (ADB) found that (you lack) rehabilitative potential  
On 9 November 1998 CNP, acting in his capacity as Deputy Chief of
Naval Operations for Personnel,
directed your discharge UOTHC by
reason of misconduct.
1910-146, which provides for separation by reason of misconduct
due to drug abuse, constituted the separation authority.
Additionally, CNP directed a separation code of 
means that the individual was discharged due to drug abuse.
Accordingly, on 18 December 1998, you were discharged UOTHC after
about 19 years and 4 months of active service.
The Board rejected your contentions that separation processing
based on your perjury violated the settlement agreement of 2
December 1997, and that such processing was a nullity because the
In this regard, the
perjury occurred during a prior enlistment.
Board substantially concurred with paragraph 3b of the advisory
opinion and paragraphs 4e and 5b of the legal analysis.
The Board also concluded your discharge would be proper and
appropriate even if even if the perjury should not have been used
as a basis for separation.
essentially states that when an individual is processed for
the separation authority must
discharge for more than one reason,
choose the most appropriate reason for separation when he directs

The ADB recommended
Itmember has no potential for further service,,,

CNP also stated that MILPERSMAN Article

ADB's findings and
. of utmost importance,
.I’

. 

. 

MILPERSMAN Article 1910-170

In his

It 

. 

. 

l,GKK," which

4

CNP did so 9 November 1998 when he directed

Additionally,

Along these lines, the Board

4a-d and 5a of the legal analysis.

discharge.
separation by reason of misconduct due to drug  abuse.
Accordingly, it is immaterial whether processing by reason of
commission of a serious offense was proper since you were not
actually separated for that reason.
in accordance
with MILPERSMAN Article 1910-214,
even if the perjury had not
been used as a basis for separation, that misconduct could have
been considered by the ADB on the issue of whether you should be
separated or retained.
That article allows adverse matter from a
prior enlistment to be considered if it would have a direct value
in determining whether separation is appropriate.
use of such material is normally be limited to situations
involving patterns of misconduct, your drug abuse constituted
such a pattern, and you perjured yourself to cover up part of
that pattern of abuse.
The Board also found no merit in your contentions that
regulations in effect in 1998 failed to contain any procedures by
which the ADB could consider your potential for rehabilitation,
and directing separation UOTHC was improper given the evidence of
rehabilitation in the record.
concurred with paragraph 3a of the advisory opinion and
The Board also
paragraphs 
noted that MILPERSMAN Article 1910-212 was considered by the
second ADB and states that in deciding whether an individual is
to be separated, the ADB should consider the likelihood that the
offense will recur, the individual's potential for further
service, and his entire military record.
In short, an ADB is
required to consider an individual's rehabilitative potential,
and that is what the ADB did in your case.
1010.4 called for rehabilitation of
of drug abusers.
could not or would 
rehabilitation clearly refers to rehabilitation for the purpose
of retention in the service,
and not simply to weaning an abuser
from his drug use.
rehabilitate and retain an individual such as yourself who used
drugs while in a position of leadership as a chief petty officer.
It is a fundamental tenet of leadership that someone in such a
position must set a good example for subordinates, and such an
individual is rightly held to a higher standard of conduct.
Accordingly, the ADB and CNP could reasonably conclude that it
was not feasible to rehabilitate you for the purpose of retention
in the Navy.
Accordingly, your application has been denied.
votes of the members of the panel will be furnished upon request.
It is regretted that the circumstances of your case are such that
You are entitled to have the
favorable action cannot be taken.
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.

Discharge was authorized for those abusers 
not" be rehabilitated."

The Board believed it is not feasible to

Additionally, DODDIR
"the maximum feasible number"
Itwho

The mandate for

Although the

The names and

5

Consequently, when applying for a correction of an official naval
record, the burden is on the applicant to demonstrate the
existence of a probable material error or injustice.

Sincerely,

W. DEAN PFEIFFER
Executive Director

Enclosure
Copy to: Mr.

6

DEPARTMENT OF THE NAVY

OFFICE OF THE JUDGE

  ADVOCATE GENERAL

WASHINGTON NAVY YAR

D

1322 PATTERSON AVENUE  SE SUITE 3000

WASHINGTON DC 20374-506

6

IN REPLY REFER TO

140 0
Ser 
14 Jul 00

13/1MA11171.00

From:
To:

Subj:

Deputy Assistant Judge Advocate General (Administrative Law)
Chairman, Board for Correction of Naval Records

REQUEST
EX-STGC

COMME
USN,

CASE OF

Ref:

(a) Your memo Docket No 3943-99 of 28 Jan 00

. .

Encl:

(1) Legal Analysis

This responds to your reference (a)

1.
and recommendation on subject case.

request for our comments

2.

Issues 

.

a.

Whether Department of Defense

(DOD) Directive 1010.4 of

3 September 1997 applied to subject member's case despite the
continued publication of an earlier, superseded, version of DOD
Directive 1010.4 in the Code of Federal Regulations.

b.

Whether Navy violated its settlement agreement with subject

member (Petitioner) by administratively processing him for
separation by reason of misconduct due to commission of a serious
offense (perjury) and by reason of misconduct due to drug abuse.

3.

Short Answers

Though Petitioner's BCNR case file does not establish

PetiFioner's  actual notice of the current version of DOD Directive
1010.4, the fact Petitioner's rehabilitative potential was
affirmatively considered and assessed prior
resolution of this issue unnecessary.

to his discharge makes

b. No.

Though the Government's settlement agreement with

"subject to administrative reprocessing
Petitioner stated he was
for drug abuse", it did not prohibit Navy from processing him for
administrative discharge on other applicable grounds.

4.

5.

Discussion.

Enclosure (1) provides a detailed legal analysis.

Point of contact:

LCDR 

Barrzzc) 

604-8212.__

1.

Issues

Legal Analysis

a.

Whether Department of Defense (DOD) Directive

 

1010.4 of

3 September 1997 applied to subject member's case despite the
continued publication of an earlier, superseded, version of DOD
Directive 1010.4 in the Code of Federal Regulations.

b.

Whether Navy violated its settlement agreement with subject

member (Petitioner) by administratively processing him for
separation by reason of misconduct due to commission of a serious
offense (perjury) as well as by reason of misconduct due to drug
abuse.

2.

Short Answers

a.

Though Petitioner's BCNR case file does not establish

Petitioner's actual notice of the current version of DOD Directive
1010.4, the fact Petitioner's rehabilitative potential was
affirmatively considered and assessed prior to his discharge makes
resolution of this issue unnecessary.

b. No.

Though the Government's settlement agreement with

Petitioner stated he was
for drug abuse", it did not prohibit Navy  
administrative discharge on other applicable grounds.

"subject to administrative reprocessing

,from processing him for

3 .

Background

In 1992, Petitioner tested
acquitFed  by a special

a.

First administrative discharge.

but was

positive for methamphetamine use,
court-martial after denying drug use under oath.
tested positive a second time for methamphetamine use and received
nonjudicial punishment (NJP).
administrative separation by reason of misconduct due to drug
abuse.
officer prior to his NJP hearing,
Petitioner admitted he  
discharge board hearing,
when he denied drug use at his 1992 court-martial.
discharged in June 1995.

In a notarized statement he submitted to his commanding

and again at his administrative

He was then processed for

li;d under oath

In 1994, he

He was

b.

Suit for reinstatement on active duty.

In March 1997,

Petitioner sued the Department of the Navy (DON) for reinstatement
on active duty.
published in the Code of Federal Regulations, required Navy to

He alleged that existing DOD regulations,

The "remarks" section at the bottom of the form states, "4.0 CHIEF WHO 

1 See Navy-Marine Corps Trial Judiciary Case Report Form, Case No. 
file.
UNDER OATH WITH SOLID GOOD CHARACTER."
' See Pirante, Frankie J. 
Training Center  ltr 1910 
of Board Proceedings," at 12, in BCNR case file.

OlD ICO STGC Frankie J. Pirante, Enclosure 

ltr of 25 December 1994, in BCNR case file, and CO Fleet 

(l), 

$er 

DENI_q

WS930074 in BCNR case

AS!

"Transcript

I--

’

to discharging him for

Petitioner further alleged that if he could be

evaluate his rehabilitative potential prior
drug abuse.
rehabilitated, Navy was required by published regulations to retain
rith the
him on active duty.
DON whereby he was reinstated on active duty 1 June 1998 with no
break in service and
and his service interrupted
"understanding" Petitioner would be "subject to administrative
reproFessing for drug abuse"
duty.

(PetitiFner)  had never been discharged
 

following his reinstatement on active

Petitioner negotiated a settlement  

That agreement also stated an

"as if  

..”

. 

. 

C.

Second administrative discharge.

Petitioner was returned

to active duty and subsequently reprocessed for administrative
discharge, this time on two grounds: misconduct due to the
commission of a serious offense (perjury at his court-martial) and
misconduct due to drug abuse (as evidenced by
and NJP).

He was discharged in December 1998.

Fis 1994 urinalysis

 

d.

Regulations amended.

At the time of Petitioner's  

firFt_

5300.28B,

dischtrge board in 1995,  

administrative 
SECNAVINST 
requiring Navy to rehabilitate the maximum feasible number of drug
abusers and discipline or discharge those not rehabilitated.
provision continues to the present in the version of
 
Directive published in the Code of Federal Regulations.

DOD9 Directive 1010.4,

5350.4B all contained language

and OPNAVINST  

thFO DOD

The DOD

That

¶ 1.

1910-146"

97cvO561-

9'9 Dle and Dlf.

97cvO561_IEG(RBB)  (S.D. Cal. 1997) at 

Paragraph Dlf further stated a policy to 

Suich of 3 June 1998 ICO Pirante v. Dalton, Civil No. 

- Drug Abuse) under block 25, "Separation Authority."
Paragraph Dle stated it was
"[tlreat or counsel alcohol and drug abusers and rehabilitate the maximum
"[dliscipline  and/or

3 Declaration of Timothy 
IEG(RBB)  (S.D. Cal. 1998)
4 See Stipulation For Compromise Settlement and Dismissal ICO Pirante v. Dalton, Civil
No.
5 Id.
6 Petitioner's discharge certificate (DD-214) lists only 'MILPERSMAN 
(Separation by Reason of Misconduct  
' DOD   Directive 1010.4 of 25   August 1980, at  
DOD policy to 
feasible number of them."
discharge drug traffickers and those alcohol and drug abusers who cannot or will not be
rehabilitated, in accordance with appropriate laws, regulations, and instructions.'
A new DOD
These requirements were deleted from the Directive on 18 January 1996.
Directive 1010.4 was issued in its entirety on 3 September 1997.
a Paragraph 
Petitioner's complaint,
rehabilitation of "as many members as is feasible" who have
future useful service and a high probability of successful treatment."
however, was modified by NAVADMIN 
process for separation all first-time drug users.
deleted the rehabilitation language (SECNAVINST 
' OPNAVINST 
1999. The revised instruction, like the DOD Directive,
rehabilitated drug users to duty.
that the goal of Navy alcohol and drug programs was
abuse and to return eligible former alcohol and drug abusers to full duty status as soon
This requirement of the old instruction, however, was at least partially
as possible."
018/92 and its requirement to administratively process all drug
superceded by NAVADMIN 
abusers.
lo  32 C.F.R. 

5350.4C of 29 June
deleted any requirement to return
$.rug

The C.F.R. provision remains unchanged despite the 1996 changes

echoed the language from DOD Directive 1010.4 and mandated the

5350.4B of 13 September 1990 was superseded by OPNAVINST 

5300.28B of 11 July 1990, which is not mentioned in

Petitioner cites the earlier version, which stated

018/92 of 12 February 1992, which announced a policy to

A 1999 revision to the instruction

"to prevent alcohol and other  

5300.28C of 24 March 1999).

'exceptional potential for

Se of SECNAVINST 

This statement,

S 62.4.

 

to,

2

t--

Directive," SECNAVINST, and OPNAVINST, however,   have been amended.
The amended versions delete the language requiring consideration of
rehabilitative potential.
When Petitioner was reinstated to active
duty in mid-1998,
the rehabilitation policy and was no longer inconsistent with
NAVADMIN 
time drug abusers.

018/92, which required discharge processing of all  

DOD Directive 1010.4 had been revised to exclude

first-

4.

Discussion

Actual notice.

We have previously opined that DOD

statutes governing the

Under that analysis,

may be applied against

hF*d not yet been published in the Code of

requifje publication of documents and rules having

pFdlicy not required to be published by statute or

Direactive  1010.4 of 3 September 1997,
persons who had actual notice of its new provisions, even-though
the new provisions  
Federal Regulations.
Federal Register  
general applicability.
personnel 
regulation.
in the Federal Register, it acquired the "force of law" and is
binding on the  
Sefsretary  until changed and re-published in the
The statutes requiring publication, taken
Federal Register.
together, create a requirement to provide constructive notice when
persons16who  may be adversely affected have not received actual
notice.
the changes to DOD Directive  
published in the Federal Register.

However, because DOD Directive 1010.4 was published

Therefore, when a petitioner has received actual notice,

lOlO.$,are  applicable even if not

1010.4 was an internal

DOD Directive  

.

. . 

. . 

.. ”

98.

'II 4.5 to

ltr 1400 Ser 

13/1MA11657 of 19 May 

¶ 4.6 that it is  DOD policy to
.. ” This policy

The requirements for publication in the Federal Register are set in title

"[clounsel military personnel who abuse

and 1997 revision of,  DOD Directive 1010.4.
l1 DOD Directive 1010.4 of 3 September 1997 now states at 
"[clounsel,  discipline, and/or process drug abusers for separation 
is distinguished from that found in  
alcohol and provide treatment and/or rehabilitation 
I2 DAJAG (Administrative Law)  
I3 Id.  at 
44, U.S. Code, which requires the publication of certain classes of documents, all of
which must have "general applicability and legal effect."
Administrative Procedure/Freedom of Information Act requires publication of "substantive
and statements of general
rules of general applicability adopted as authorized by law,
policy or interpretations of general applicability."
l4 See  DAJAG (Administrative Law) ltr of 19 May 98,  supra  note 12, at 
this conclusion may be found in National Association of Concerned Veterans v. Secretary,
487 
S 552(a)(l)(D) ("general policy" and
1976)), which interprets the language of 5 U.S.C.
"general applicability") as having
Similarly, the
rights of the general public or a segment thereof."
Administrative Procedure/Freedom of Information Act has an exception for "internal
personnel rules and practices of an agency."
l5 See DAJAG (Administrative Law) ltr of 19 May 98,  supra  note 12, at 
I6 Id.  at 
be published in the Federal Register is not valid as against a person who has not had
actual knowledge of it until" it has been published.
" See DAJAG (Administrative Law) ltr of  19 May 98,  supra  note 12, at 
request in this case refers to Nolan v. United States, 44 Fed. Cl. 49 
reaches a different conclusion.

S 1507, which states that "[a] document required 

(D.D.C. 1979) (quoting  Lewis v. Weinberger, 415 

In this regard, reliance should not be placed on   Nolan

"a direct and significant impact upon the substantive

citing  44 U.S.C. 

§ 552(a)(l) (D).

Id.  at 200.

(1999), which

§ 552(b)(2).

F.Supp. 192,

¶ 4a.

Authority for
F.Supp. 652, 659 (D.N.M.

5 U.S.C. 

44 U.S.C. 

$ 1505.

The

¶ 4e.

The BCNR

5 U.S.C. 

¶ 

4c.

:_.. 

. to

'P 4a.

'P 

4d,

b.

Application to Petitioner's case.

The BCNR record in this

case does not establish that Petitioner received actual notice of
the current provisions of DOD Directive 1010.4.
inquiry would be required to determine whether such notice was
provided to Petitioner in the course of litigation or during
subsequent administrative discharge processing.
evidence that Petitioner was aware of the regulatory changes prior
to his discharge,
then the conclusion of reference (b) would apply
to this case.

If there were

Additional factual

_:

. 

. 

C.

Compliance with DOD Directive 1010.4.

. drug abusers who cannot or will not be

rehabilitatedig which is essentially an assessment of

The 25 August 1980
version of DOD Directive 1010.4 stated that   DOD  will "rehabilitate
the maximum feasible number" of drug abusers and "discipline and/or
discharge 
rehabilitated."l*
Implicit in these requirements was a duty to
assess the rehabilitative potential of service members who abuse
drugs.
The Directive did not require the attempted rehabilitation
of all service members, only the "maximum feasible number" of them.
It permitted the services to render a judgment that a member
'Icannot" be 
rehabilitative potential.
In Petitioner's case, it may have been
possible, and reasonable, for the board and subsequent reviewers to
determine Petitioner lacked rehabilitative potential based on his
history of drug use and evidence of record.
drug use was evidenced by a urinalysis
for methamphetamine and Petitioner's
further drug use following a second positive urinalysis in
Petitioner's history of drug use and prior rehabilitative efforts
provided his 1998 administrative discharge board and higher
authority with substantial evidence to support a determination that
no additional attempts at Petitioner's
by the DOD Directive.
"[mlember  has no potential for further service.
in transmitting the board
Petitioner's commanding officer,
proceedings to the Bureau of Naval Personnel, interpreted the

exp;zlssly state that
Additionally,

Petitioner's suspected
in 1992 that tested positive

rehabilitation were required

subsequent admissions to

The board's findings  

1994.20

 

represents a more complete analysis of the

The
S 1507 and the line of cases holding that an unpublished

The court in  Nolan  reasons that because publication of a

§ 1510(e), such

 

  August 1980 (emphases added).

because of analytic errors.
regulation creates a presumption of effectiveness under 44 U.S.C.
regulation is the exclusive authority until subsequent regulation is republished.
court fails to address 44 U.S.C.  
regulation is effective against those who have actual notice of its provisions.
Accordingly, our opinion, discussed above,
issue.
l8  DOD Directive 1010.4 of 25
lg This is the only reasonable interpretation of the Directive's language.
"cannot or will not" were read to require the actual,
service member, then even one attempt at rehabilitation might not be sufficient.
point, a judgment is required as to whether the drug abuser can ever be reliably
free and fit for full duty.
*' See 
Pi-rante, # 568-29-9546, of 26 July 1999, at 3,
admissions of drug use).
" CDR Edmond C. Caviness II ltr of 
CASE OF STGC 

See also  Addendum to DD 149 Submitted By 

¶ 3a above and  supra  note 2.

PIRANTE," at 1.

in BCNR case file (citing earlier

FRANKIE J. 

5 August 1998, "REPORT OF AN ADMINISTRATIVE BOARD IN

attempted rehabilitation of each
At some
drug-

 

If the phrase

Frank$e J.

4

c--

board's findings as   a 
rehabilitative potential.

detzz2mination that Petitioner "lacks

d.

Compliance with   Rogers.

Assuming the application of   Rogers
hi,", 1998 administrative discharge

case,23

V. Dalton  to Petitioner's  
complied with   Rogers'  requirements.
characterized "Navy's failure to follow  
[Rogers] without considering his potential for rehabilitation and
without making findings  
as a denial of due process.
of his right to present evidence on his
and exercised that right.
record is replete with  
rehabilitative potential.

In this case, Petitioner was aware
rehabilitative potential

The administrative discharge board

te;;imony addressing Petitioner's

regFsrding his potential for rehabilitation"

DOD policy by discharging

The Rogers  ruling

At one point, the board itself
witness'FT  own

examined a witness for the Petitioner on the

 

As noted
rehabilitation as an alcoholic through Navy programs.
above, the board and Petitioner's commanding officer made findings
explicitly or implicitly through
on his rehabilitative potential,
their recommendations,
presented.
under the  Rogers  standard and the
rehabilitative "consideration"
finding that Petitioner had no potential for future service is not
arbitrary or capricious.

Accordingly, the record clearly establishes

after consideration of the information

e.

Separation processing based on perjury

(1) Under the terms of the December 1997 settlement

agreement, Petitioner's reinstatement on active duty was to be "as
if [he] had never been discharged and his naval service
uninterrupted, including restoring his eligibility to apply for
TERA 

Once reinstated, he was eligible for all

retirement."2*

As has been our practice,

v. Dalton, we  believe that

30/0691 of 19 August 1998 at 2.

As we have noted in each of our opinions
and should not be considered
we assume for purposes of
findings of Rogers  in cases

" TPU San Diego ltr 1910 Ser  
23 Rogers v. Dalton, 1995 WL 125427 (N.D. Cal).
in connection with cases relying on the ruling in  Rogers 
Rogers  was decided incorrectly, is not binding on the BCNR,
persuasive regarding any other case.
this opinion that the BCNR nonetheless intends to apply the
of similarly situated petitioners.
*' We assume here that the only aspect of Petitioner's history of disciplinary and
administrative action that is subject to this BCNR application is his 1998 administrative
1997 compromise settlement with
discharge.
This assumption is based on the government's
1995 administrative discharge.
Petitioner of his lawsuit regarding the propriety of his
Under the terms of that settlement,
break in service reflected in his service record and agreed to the dismissal with
prejudice of all claims arising out of his complaint.
97cv0561-IEG(RBB)  (S.D. Cal. 1998) at 
Thereon ICO Pirante v. Dalton, Civil No. 
" Rogers v. Dalton at 1.
26 See e.g. testimony of STGCM Spivey, 
in CDR Caviness ltr,  supra  note 21.
"-Id.  at 10.
'a See Stipulation for Compromise Settlement and Dismissal,  supra  note 4.
also included the caveat that 
FY98." Id.
appropriations for 
as the only TERA-eligible 

TERA availability "depends on congressional authority and
126/97, lists E-8

Dismissal and Release and Order
¶ l-2.

Petitioner was reinstated on active duty with no

paygrade within the STG rating in 

Navy implementation of  

STGl Sloan, set forth

TERA, NAVADMIN 

STGl Boon, and 

STGl Sprague, 

The settlement

Accordingly,

FY98.

5

i

.

.

The Military Personnel Manual (MILPERSMAN)

MILPERSMAN 1910-142 permits separation

benefits  available  to active-duty personnel and subject to all
applicable regulations.
regulates the administrative separation process, and is the
definitive source for determining whether a particular basis for
processing is appropriate.
processing for misconduct due to the commission of a serious
offense when the offense can be substantiated by a preponderance of
evidence.
Regarding Petitioner's alleged perjury, evidence was
available in the form of his own notarized statement provided to
his commanding officer following his 21 December 1994
NJP.2g In
that letter, Petitioner admits to methamphetamine use prior to his
1992 
acquittal.
administrative board hearing:
went to a court-martial and  
was true and I denied  
it.lf31
preponderance standard required for processing under MILPERSMAN
1910-142.

"I am not proud of the fact that I
denie.d methamphetamine use because it

positiove urinalysis and immediately-after his court-martial

Even more compelling is his testimony at his-1995

This evidence clearly rises to the

 

a

(2) MILPERSMAN 1910-215 provides that adverse matter from
"should be used as a basis for separation if the

In this case, Petitioner last re-enlisted on 6 May
Accordingly,

prior enlistment
adverse matter was unknown to competent authority" at the time of
reenlistment.
1994, prior to making the above-quoted statements.
the evidence of Petitioner's perjury was unknown to Navy at the
time of his re-enlistment and could be used as a basis for
administrative processing during a subsequent enlistment.
MILPERSMAN 1910-210, processing is required for all known reasons.
Once Navy had credible evidence Petitioner had committed perjury,
it was required by its regulations to include the perjury as a
basis for administrative processing.
Petitioner states he
drug 
bases applicable under its regulations.

The settlement agreement with
"is subject to administrative reprocessing for

but does not restrict Navy from processing on other

abuse,"32

Per

(3), establishes otherwise:

[Elligibility  for the TERA

NAVADMIN 

126/97 further states in 

'P 5.B that the

In fact, the following language from the government's

Pirante would be approved for TERA retirement

Any such application would be considered on its merits, in

As Petitioner was ineligible
TEPA, it is not necessary to decide whether an understanding existed between the Navy

Petitioner, as an E-7, was ineligible.
"applicant must   be eligible and recommended  for retention/reenlistment, and not have
adverse disciplinary or administrative actions pending."
for 
and Petitioner at the time of the settlement that he would not be processed until given
the opportunity to apply for TERA.
settlement offer, enclosure 
Retirement Program is not a guarantee Mr.
were he to request it.
accordance with applicable regulations  
” Pirante, Frankie J.,
" Id.  at 4-5.
seriously thinking about divorce for the last 2 years.
use 
methamphetamine.
Even at this point,
I celebrated with a line of meth.
needed help.
" CO Fleet ASW Training Center ltr,  supra  note 2, encl. 
'* Stipulation for Compromise Settlement and Dismissal,  supra  note 4, at 

Excerpts supporting this conclusion include: (from page 4) "I was
"Two years ago I had my first positive  urinalysis  for

I quit using meth probably for approximately 6-7 months."

However, back in my mind I knew I had a 

ltr of 25 December 1994, in BCNR case file.

I chose Court Marshall [sic], denied it,

I did not realize I had a problem.

and was found not guilty.

The same day I was found guilty,

Every time I got angered I would

meth."; (from page 5)

[emphasis added].

problem_and

(l), at 12.

'P 1.

6

I-- ’

. 

. 

.

5.

Conclusions

a.

The record does not establish that Petitioner had actual
  DOD  Directive

notice of the changes to DOD policy contained in
1010.4 of 3 September 1997.
have notice, Navy complied with the requirement to consider
Petitioner's rehabilitative potential,
Dalton,

prior to discharging Petitioner in 1998.

However, even if Petitioner did not

as enunciated in  Rogers v.

b.

Once reinstated on active duty,

Petitioner was subject to

Navy rules and regulations that required his processing for
misconduct based on evidence he committed perjury.
agreement with Petitioner expressly permits Navy to reprocess
Petitioner for administrative discharge for drug use, and there is
no language in that agreement restricting Navy from processing
Petitioner for administrative discharge on other applicable
grounds.
with Petitioner by adhering to its regulation on administrative
discharge processing.

Navy did not violate the settlement agreement

Therefore,

The settlement

._ 

.

C .

No relief is warranted in Petitioner's case.