DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORD

NAVY 

ANNEX

2 

WASHINGTON DC 20370-510

0

S

AEG
Docket No: 1155-02
6 December 2002

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 3 December 2002.
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, your medical record and applicable
statutes, regulations and policies.

Your allegations of error and

After careful and conscientious consideration of the entire
record,&he  Board found that the evidence submitted was
insufficient to establish the existence of probable material
error or injustice.

The Board found that you were commissioned an ensign (O-l) in the
Navy on 24 May 1996 upon graduating from the Naval Academy.
After brief periods of duty at the Academy and the Joint Staff,
Washington, D.C, you reported for duty to the Naval Aviation
Schools Command (NAVAVSCOLSCOM), Pensacola, FL for training as a
naval aviator.

Consequently, you were charged with driving under the
You were found guilty of this

A blood
On 22 July 1997 you were injured in a traffic accident.
alcohol content (BAC) test performed at that time showed a BAC of
. 11.
influence (DUI) of alcohol.
offense on 19 February 1998 and sentenced to probation, community
service, a $776 fine, and suspension of your driver's license.
Attendance at DUI school and a victim impact panel was also
directed.

You were screened and evaluated at the local addiction treatment
facility (ATF) on 24 September 1997, but did not meet the
applicable criteria for a diagnosis of either alcohol dependence

abuse.l

You completed an  

or 
November 1997.
you completed Navy DUI remedial training,
of alcohol/drug awareness instruction,
Navy Alcohol and Drug Safety Action Program (NADSAP).

l'Alcohol Impact" class on 23

A certificate dated 12 March 1998 reflects that

consisting of 24 hours

in conjunction with the

Also in March 1998, you were shown a draft of a Civil Action
Report that the Commanding Officer (CO), NAVAVSCOLSCOM proposed
to send to the Chief of Naval Personnel (CNP).
In response to
the draft action, on 11 March 1998 you submitted the following
statement:

I am aware of the consequences of this conviction in both
the Naval Service and the Civil System and I accept full
responsibility for my actions.
have embarrassed the Naval Service and myself.
learned a great deal from the entire experience and I will
use these lessons to improve myself as an officer and a
person.
Naval Career.
has not been diminished by the handicap I have placed upon
myself through this conviction.

I am grateful for the opportunity to continue my
My desire to succeed in the Naval Service

Through my poor example I

I have

On 1 April 1998 the CO, NAVAVSCOLSCOM submitted the Civil Action
Report to CNP and stated that part of your sentence was
ttprobation  for 12 months."

ChP sent you a copy of the final Civil

By letter of 19 May 1998  
Action Report and stated that you should have been given an
opportunity to comment on the final report and not the draft.
You were given 15 days to do so and advised that if no comment
was received by that time,
the statement of 11 March 1998 would
be entered into the record as your response to the final report.
The record does not indicate that you submitted any further
comment.

Meanwhile, you had been reassigned to Training Squadron SIX. On
15 June 1998 you were promoted to lieutenant junior grade (LTJG;
O-2).
states that you had been dropped from flight training.

A fitness report which closed out on 1 September 1998

On 1 November 1998 you were refused entry into a local tavern due
to your intoxicated appearance.
you a taxi, you hit him in the side of his face with a closed
You were then arrested by civil authorities and charged
fist.
with assault and battery.
On 23 November 1998 you pled   nolo
contendere,

were found guilty and sentenced to a $300 fine.

When an employee tried to get

On 3 December 1998 you returned to the ATF and were once again
screened and evaluated.
Subsequently you were diagnosed with
ttalcohol  abuse (provisional)"
1 Diagnostic and Statistical Manual of Mental Disorders 181-83   (American
Psychiatric Association 4th ed. 1994). [DSM-IV)

and recommended for return to duty,

2

attendance at a one-week program of formal outpatient treatment,
and 12  weeks of structured continuing care.
medical record reflect that you completed an "intensive
outpatient" program in January and February 1999.

Entries in the

Once again, you were presented with a draft of a civil action
report and, on 10 December 1998, you submitted a statement which
"concurred that all information set
referenced such a report and
forth in (the report) is said to be true."
On 14 December 1998
the Commander, Training Wing FIVE submitted a final Civil Action
Report to Navy Personnel Command that stated, in part, as
follows:

This is not (LTJG M's;
alcohol related incident  
February 1998 for a DUI offense on 22 July 1997 and was
sentenced to probation for 12 months

your) first conviction for an

. (LTJG M) was convicted on 19

 

.. 

. . 

.

The Commander also recommended that you be processed for
administrative separation.

It appears that the command presented you with a copy of the
final Civil Action Report because on 16 December 1998, you
submitted a letter with the subject line "Civil Action Report,"
in which you acknowledged that the convictions had placed your
career in jeopardy, accepted responsibility for your actions, and
requested "the opportunity to complete my commitment to the Navy
honorably."

On 1 March 1999 CNP notified you that administrative separation
action had been initiated,
and of the debt you would owe the
government for the educational expenses incurred while at the
Naval Academy.
is not a part of the record, your Certificate of Release or
Discharge from Active Duty (DD Form 214) indicates that
separation action was initiated by reason of misconduct due to
commission of a serious military   or civilian offense.

Although the separation processing documentation

In support of the request for retention, you submitted a

In response to the proposed separation action, you requested
retention in the Navy.
In the alternative, you submitted an
unqualified resignation which, if accepted, would have resulted
in an honorable discharge instead of the general discharge that
could result upon approval of the administrative separation
action.
letter from the former CO at NAVAVSCOLSCOM, who summarized your
excellent performance while attached to that command, questioned
the legal advice which led you to plead no contest to the assault
charge, and opined that "there's still fine officer material in
(LTJG 
indebtedness to the government; however, in so doing, only
reiterated your desire for retention and did not contend that the
debt itself was invalid.

You also elected to contest the validity of the

M)."

3

pro-rata recoupment of the cost of your education at the

On 20 April 1999 CNP submitted a letter to the Secretary of the
Navy (SECNAV) recommending separation with a general discharge by
in accordance with applicable Federal
reason of misconduct and,
law,2
Academy.
of 1 April 1998 to the effect that the first civil conviction
resulted in "probation for 12 months."
remainder of the substantive and procedural history of your case,
CNP stated as follows:

In the letter, CNP quoted from the Civil Action Report

After reciting the

. 

. (LTJG M's) behavior outside of the work environment

. 
has been reprehensible and well below that expected of a
In a statement made by (LTJG M) following
naval officer.
his DUI conviction he stated
"I have learned a great deal
from the entire experience and I will use these lessons to
improve myself as an officer and a person."
nine months after this statement and   while still on
probation  he was arrested for assaulting a person while
heavily intoxicated.
of poor judgment and an inability to understand the
consequences of his actions.
inconsistent with the needs of the Naval Service and the
officer corps.
of his resignation request and is deserving of a General
(Under Honorable Conditions) discharge
supplied).

(LTJG M) has demonstrated a pattern

(LTJG M's) misconduct warrants disapproval

These traits are clearly

Yet less than

 

. . 

. (emphasis

On 4 May 1999 the Assistant Secretary of the Navy for Manpower
and Reserve Affairs  
(ASN/M&RA),  acting for SECNAV, approved a
$34,397.60.
general discharge and recoupment in the amount of  

On 3 June 1999 a retired Navy captain (CAPT; O-6) wrote a letter
to CNP in which he stated as follows:

As we have seen in our careers the Navy rehabilitation
program has been very successful when the individual was
correctly diagnosed.
situation, as expressed by a former (CO), he did not
receive the correct level of rehabilitation.
excuse his actions, but should be taken into consideration
for a totally informed decision.

I believe that in (LTJG M's)

This does not

Also on 3 June 1999, you underwent a separation physical
examination and were deemed physically qualified for separation.
The examination report noted that you had undergone Alcohol
Impact training in 1997 and the intensive outpatient regimen in
January and February of 1999.
On 11 June 1999 you received a
general discharge by reason of misconduct after about three years
of active service.

2 10 U.S.C.A. 

S 2005 (1998).

4

On 13 September 1999 CNP responded, in part, as follows to an
earlier letter from your father, a retired CAPT in the Naval
Reserve:

(ASN/M&RA's)  decision to approve his

As you know, the first incident involved a

The decision to discharge (him) was a very difficult one.
This was especially so in view of his desire to be
retained; however, two alcohol-related civil actions
provided the basis for  
separation.
one-car accident and resulted in a (DUI) conviction.
second incident involved battery   and occurred while (he)
was still on probation for the first incident.
the first incident, he was given the opportunity to prove
he was earnest when he stated
from the entire experience and I will use these lessons to
improve myself as an officer and a person." Unfortunately,
(his) subsequent misconduct showed he did not have the
potential to continue his career as a Naval officer.
(emphasis supplied)

"I have learned a great deal

The

Following

You submitted a letter of 25 April 2000 from the Circuit Court in
Pensacola, FL, which congratulated you on completing a period of
probation which ended on 16 August 1998.

The Board noted that although the letter of 25 April 2000

The Board rejected your contention that corrective action is
warranted because CNP improperly stated that you were on
probation at the time of your assault offense on 1 November 1998
when, in fact, you completed the probationary period on 16 August
1998.
does not set forth the civil offense which resulted in the
probation or when you were placed on probation, it seems clear
that the letter referred to the probation imposed on 19 February
1998 as part of the sentence for your DUI conviction.
appears to indicate that either you were placed on probation for
a period of less than a year,
or were placed on probation for a
year, but the probation was terminated early.
If the former is
true, you had numerous opportunities to correct the error when
you were presented with the draft and final copies of the two
civil action reports, all of which apparently referred to the
yearlong probationary period.
you could have mentioned this fact when presented with the draft
and final copies of the second civil action report.
you had an opportunity to correct any error concerning your
probation, but failed to do so.

If probation was terminated early,

Accordingly,

The letter

The Board also concluded that any error concerning the duration
of your probation was not material.
It is clear that your
discharge was recommended and approved because you failed to
learn from the DUI and ensuing conviction.
Slightly more than a
year after these events you were involved in yet another instance
The
of misconduct that resulted in a second civil conviction.
Board believed that the outcome of the separation processing
clearly would have been the same even if senior Naval authorities

had been aware that you were no longer on probation at the time
of the second incident.

Federal 

The Board also found no merit in your assertion that since your
misconduct resulted from alcoholism, there was no basis for
law3 states that such action is appropriate
recoupment.
if an individual "voluntarily or because of misconduct" fails to
complete an agreed upon period of active duty.
It is clear that
upon graduating from the Naval Academy,
serve on active duty for a specified period.
because of the discharge for misconduct.
was proper in your case.

You failed to do so
Accordingly, recoupment

you were obligated to

In this regard, the Navy's directive on alcohol and

Such action is not rendered improper even if you were an
alcoholic.
drug prevention and control,
misconduct, specifically stated "all personnel are responsible
and fully accountable for their personal activities relating to
alcohol 
.. 
activities."
of the directive which stated  
alcohol 

This policy was reinforced by another provision

. abuse prevention rests with the individual."

"(t)he primary responsibility for

in effect at the time of your

. illegal acts resulting from such

4 and for any

. . 

 

. 

. 

Benchbook  provides
Although one of the instructions
"(a)lcoholism is recognized by the medical

Additionally, nothing in the   Military Judges  
any support for your argument.
states, in part, that
profession as a disease involving a compulsion toward
intoxication," the instruction goes on to state that  
matter of law, however,
the compulsion of alcoholism is regarded as voluntary
intoxic?tion,"  and
. . .
legal 
. 

II
itsanity is not a defense to 'general intent' crimes

Additionally, "voluntary intoxication not amounting to

"(a)lcoholism  is not in itself a defense

intoxication from drinking as a result of

"(a)s a

. 

.

The Board also rejected your contention that recoupment should be
barred since the Navy failed to provide you with appropriate
alcohol treatment and rehabilitation after the DUI incident in
1997.
The governing directive stated that Level I treatment,
designed for a non-dependent alcohol user or abuser, consisted of
local command programs including intervention efforts such as
civilian or military discipline,
NADSAP.'
counseling and assistance center,
dependent individual,

but one whose degree of abuse requires more

Part of NADSAP was DUI school."

was also designed for a non-

administrative screening and

Level II, the

3 10 U.S.C.A. 
z Chief of Naval Operations Instruction (OPNAVINST)  

S 2005(a)(3).

5350.4B  
,

n 

7p.

OPNAVINST 

5350.4B,  Encl 

(3),  
6 Department of the Army Pamphlet (
7 Id.,
8 Id.
' OPNAVINST 
lo Id., at 

5350.4B,  Encl 

p 5-12.

(6),  

I[ 2b.

at 

q 1.

fi 2a.

DA  PAM) 27-9.

than Level I treatment."
for those individuals diagnosed as alcohol-dependent.

Level III, in-patient 

trea$Tent,  was

the Alcohol Impact Class and the

The Board concluded
In reaching this

In any case, it seems clear that you

DSM IV, in effect at the time of the DUI,

pat$Frns of alcohol use that do not meet the criteria

The Board cannot tell whether  
DUI remedial training were the same class, or constituted
different training.
received Level I treatment after your DUI.
this was the appropriate level of treatment.
determination, the Board noted that the applicable regulation
defined "alcohol abuse," in part, as the use of alcohol to an
extent that it leads to one or more alcohol related incidents or,
clinically, a residual category set forth in the DSM for noting
maladaptive 
for dependence.
stated that criteria for such a pattern consisted of recurrent
substance use resulting in a failure to fulfill obligations at
work school or home; recurrent substance use in physically
hazardous situations (such as DUI); recurrent substance -related
legal problems; or continued  
social or interpersonal problems.
reflected only the one instance of DUI,
signs of more serious abuse.
indicated that you did not meet the DSM   criteria for abuse.
Unless you related a history to the ATF evaluator that would have
led to the conclusion that your alcohol problem was actually
severe, it was reasonable for Navy officials to conclude that
your level of abuse was low and you needed only the minimal
treatment provided by Level I.

subsF$nce use despite persistent

Your record at the time

and none of these warning

Further, the evaluator at the ATF

 

more

The Board also found no merit in your contention that recoupment
constituted disparate treatment and was unfair when compared with
In support of this contention, you cite two
other similar cases.
cases in which this Board recommended a waiver of recoupment for
However, as
midshipmen involved in alcohol-related misconduct.
you point out, those recommendations were disapproved and the
individuals have not been relieved of their responsibility to
reimburse the government.
In another midshipman's case, the
Board's recommendation for relief initially was disapproved, but
this action was later vacated and corrective action was approved.
However, this case was somewhat peculiar in that it involved
homosexual behavior, and a Department of Defense directive
pertaining to recoupment in such cases.

Although the 24 midshipmen discharged from the Naval Academy in
1994 for cheating were not required to serve in an enlisted
status or reimburse the government for educational expenses.
Waivers were granted only because the investigation concerning
and senior Navy officials cautioned
the cheating took so long,
that such action "should not be looked at as something that will

1[ 
2c.
I 2d.

" Id., at 
l2 Id., at 
I3  OPNAVINST 5350.48, Encl (1).
l4 DSM IV,  pp. 182-83.

future."15

happen again in the  
midshipman who was relieved of the reimbursement requirement even
though he was discharged from the Academy for using LSD, the
Board determined that this waiver action resulted from political
considerations, and concluded that this case should not be viewed
as setting a precedent that should be followed.

Concerning the case of the

The Board also found it significant that all of the cases you
cite involved former midshipmen.
commissioned officer at the time recoupment was directed.
Accordingly, even if it could be said that you were not treated
as leniently as they were,
you, as a commissioned officer,
conduct.

such action would be appropriate since
were held to a higher standard of

However, you were serving as a

Therefore, the Board could find no justification to upgrade your
discharge, change the reason for separation or relieve you of the
responsibility to reimburse the government for the cost of your
education.
names and votes of the members of the panel will be furnished
upon request.

Accordingly, your application has been denied.

The

The Board noted your desire for a personal appearance but
concluded that a decision could be made based on the documentary
Accordingly, a personal appearance by you
evidence of record.
would serve no useful purpose.

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.
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

Final Decision Made:  24 Mids to be Expelled,  BALT. SUN,
lB,  

9B.