DEPARTMENT  OF  THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORD

S

2 NAVY ANNE

X

WASHINGTON DC 20370-510

0

TRG
Docket No:
29 March 2001

4440-99

Dear

This is in reference to your application for correction of your
naval record pursuant to the provisions of title 10 of the United
States Code section 1552.

A three-member panel of the Board for Correction of Naval
Records, sitting in executive session, considered your
application on 27 March 2001.
injustice were reviewed in accordance with administrative
regulations and procedures applicable to the proceedings of this
Board.
Documentary material considered by the Board consisted of
your application, together with all material submitted in support
thereof, your naval record and applicable statutes, regulations
and policies.

Your allegations of error and

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 entered the United States Naval Academy
(USNA) in 1992 and served in a satisfactory manner until your
first class year.
On 15 October 1995 a Midshipman H made a
statement implicating you in the use of LSD and marijuana.
Subsequently, on 22 January 1996, he made a further statement
about your drug use.

On 23 January 1996 you submitted a qualified resignation from the
Academy.
follows:

You stated in your resignation letter, in part, as

. 

. in the event military service is not considered

. 
appropriate, I acknowledge my recoupment obligation and
agree to repay the cost of my education . . . I
acknowledge that, by virtue of this resignation, I may
be or become indebted to the government, but can obtain
sufficient funds to liquidate such indebtedness.

On 31 January 1996 the Superintendent, USNA, recommended
disapproval of your request for resignation and stated, in part,
as follows:

(She) was facing administrative conduct proceedings at
the Naval Academy due to her involvement with unlawful
Before conduct
drugs, including use of LSD.
proceedings commenced, evidence of additional
misconduct 
another midshipman and other multiple instances of use
of LSD, was discovered. . . . Charges will be preferred
against (her) for consideration at an investigation
pursuant to Article 32, Uniform Code of Military
Justice 

. including transfer of marijuana to

(UCMJ).

. . . 

On 31 January 1996 you were charged-with possession of drug abuse
paraphernalia, one specification of using LSD, one specification
of distributing marijuana, and four specifications of using
marijuana.

She did not see you use LSD but stated that she discussed it

On 15 February 1996 Midshipman C made a statement that Midshipman
H had LSD in his possession,
and she admitted ingesting some of
it.
with you during the evening and you were both laughing a lot.
27 February 1996 Midshipman B made a statement concerning his use
of LSD, and stated that he did not see you use LSD, but you told
him you were "feeling  

it".

On

concerning the charge of
that such possession was merely

Subsequently, an investigation was directed pursuant to UCMJ
Article 32.
On 11 April 1996 the investigating officer (IO)
reviewed the charges and found,
possessing drug paraphernalia,
incidental to your alleged use  of drugs, and including this
offense was unnecessary overcharging.
Concerning the charge of
using LSD, the IO found that the only evidence was the statement
of Midshipman H, and his statement was not corroborated as to an
essential fact.
He noted that Midshipman B merely testified that
he overheard a conversation in which he assumed you were
discussing LSD.
marijuana, the IO found that the marijuana was jointly possessed
by you and Midshipman H and the subsequent relinquishment of
control over the marijuana by you did not amount to criminal
distribution.
the IO stated that the only evidence of these offenses was the
statement of Midshipman H, an accomplice to the offense, and that
military justice frowns on the use of uncorroborated accomplice
testimony.
offenses did not warrant trial by court-martial given the other
administrative avenues available to the government."

Concerning the remaining charges of marijuana use,

Concerning the allegations of distributing

The IO also concluded that  

"the significance of these

On 12 April 1996 you waived your right to an investigative
hearing after being accused of an unauthorized absence of about
three days.
for Manpower and Reserve Affairs (ASN  

On 16 April 1996 the Assistant Secretary of the Navy
{M&RA}) denied your earlier

2

request for a qualified resignation.

Ten days later, the Staff Judge Advocate, USNA informed your
counsel that a request for a qualified resignation would now be
On 29 April 1996 you submitted another
favorably endorsed.
qualified resignation.
part, as follows:

You stated in your resignation letter, in

I acknowledge my connection to the current
investigation pertaining to unlawful drug offenses at
the Naval Academy, and I admit that I participated in
activity which may violate the Conduct Code . . . I
acknowledge a potential recoupment obligation and agree
to repay any lawful cost of my education received tat
the Naval Academy.
I do not, however, hereby waive any
arguments I may have as to why I should not be required
to repay such costs.  
. This resignation is expressly
tendered with the request that I be permitted to finish
my Spring Semester 1996 classes and examinations prior
to it becoming effective, so that I may receive credit
for those courses.

. . 

On 20 May 1996 the Superintendent,
qualified resignation and stated, in part, as follows:

USNA favorably endorsed the

. 

. upon reassessment of (her) case, I have determined

. 
that a qualified resignation would be an appropriate
resolution. 
request and I recommend that she be required to
reimburse the government in the amount of  
for the cost of her education at the Naval Academy.

. I strongly recommend approval of her

$85,328.06

. . 

You were honorably

ASN(M&RA) approved your resignation and directed

On 3 June 1996 
recoupment of the cost of your education.
discharged from the USNA on 12 July 1996 and the reason for
discharge was "failure to complete a course of instruction".
In your application you are requesting that you not be required
to repay the cost of your education at the USNA.
You point out
that you were never actually charged with a drug related offense
under the Academy's conduct system and that the IO at  
32 investigation found that reasonable grounds did not exist to
believe that you committed the alleged offenses.
despite this findings, individuals at the USNA coerced you into
submitting a resignation by informing you that you would never
graduate and the investigation would continue.
You contend that
your resignation signified neither guilt nor innocence since only
a fair hearing could make that determination.
Since you did not
believe you would not get a fair hearing and wanted to get on
with your life, you submitted your resignation.

You note that

You allege that

the'Article

3

you had a brother and sister at the Academy and did not want  to

cause them further embarrassment.

Concerning Midshipman H, you contend that he was an admitted liar
and thief who was convicted by a general court-martial of his
drug activities at the USNA.
credence should be given to any of his sworn statements.

H's testimony or written

You point out that in many of the related cases, which ultimately
involved 19 midshipmen, Midshipman 

One of those

You have provided evidence that the Assistant

affidavit was the only direct inculpatory evidence.
former midshipman was a Mr. 0, who was accused of possessing and
using LSD based on the testimony of Midshipman H and one of his
friends.
You believe that the case against you was weaker than
H's friends testified that he
the case against 0 because one of  
had actually seen 0 consume LSD,
and no such testimony existed in
your case.
Secretary of the Navy subsequently waived recoupment in Mr.  
case.
it should be waived in yours.
cite the case of United States v. Kelley 40 M.J. 558 (NMCMR
1994), which holds that when two cases  
arise from a common scheme,
widely disparate and the record reflects, no good or cogent
reason for the disparity, an appellate court should act to remove
the disparity.

ake closely related and
and the disposition of the cases is

You contend that since recoupment was waived in his case

In support of this contention, you

Kelley, at pp.  

570-71.

O's

You also noted that none of the midshipmen discharged in 1994 for
cheating on the electrical engineering examination were required
to pay the cost of their education.
In addition, you point to
one of this Board's cases in which a waiver of recoupment was
recommended for a former midshipman who was discharged following
a drunken assault on another midshipman who was on duty at the
time.
Another case cited from this Board was settled when the
individual initiated action in federal court.
Therefore, you
believe that if recoupment was waived in those cases it should be
waived in yours.

5 2005.

Further, the statute requires that  

Reimbursement of educational expenses is specifically authorized
by 10 U.S.C. 
midshipman enter into an agreement in which they acknowledge that
reimbursement may be directed if they fail to graduate from the
Academy.
misconduct are routinely required either to serve in an enlisted
status or reimburse the government for educational expenses and
that requirement is rarely waived.

Midshipmen who are discharged or resign due to

t

In reaching its decision,
the IO that the charges against
court-martial.

you not result in trial by a
However, the IO noted that there were other

the Board noted the recommendation of

4

administrative avenues available.
One of these avenues was an
administrative conduct proceeding at which the standard of proof
would have been a preponderance of the evidence rather than the
more stringent standard of beyond a reasonable doubt, which would
have been applied at a court-martial.
further administrative consideration of your case by submitting
your resignation, and you admitted guilt in your resignation
letter.
submitted none, to show that your resignation was coerced.
clear that you received at least some benefit from the
resignation because when it was accepted, you were honorably
discharged due to failure to complete a course of instruction and
not for misconduct.

There is no evidence in the record, and you have

However, you precluded any

It is

Concerning the decision to waive recoupment of educational costs
for Mr. 0 in 1996 despite his use of 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
not believe that the case of United States v. Kelley, supra,
which related to disparate sentences from courts-martial has much
relevance to an administrative determination involving the
recoupment of educational costs.

Additionally, the Board did

The Board was aware that the 24 midshipman expelled because of
cheating in 1994 were granted waivers of recoupment only because
the investigation concerning the cheating scandal took so long.
It is clear that this action was never intended to set a
precedent for other cases.

Concerning one of the cases from this Board that you cited,
although the Board recommended that the educational costs not be
recouped, this recommendation was denied by  
Therefore, this individual was required to repay the cost of his
education and it does not support your contention that you have
been treated differently than others.
cited, the Board denied relief and,
action in federal court, the case was settled.
Board noted that cases are settled for various reasons, and such
a settlement is not precedential in nature.

In the other case you

However, the

after the applicant initiated

ASN(M&RA).

Accordingly, your application has been denied.
votes of the members of the panel will be furnished

The names and

upon request.

It is regretted that the circumstances of your case
favorable action cannot be taken.
You are entitled to have the
Board reconsider its decision upon submission of new and material
evidence or other matter not previously considered by the Board.
In this regard, it is important to keep in mind that a
presumption of regularity attaches to all official records.
Consequently, when applying for a correction of an official naval

are such that

5

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 
Executive Director

PFEIFFER

6

DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORD

S

2 NAVY ANNE

X

WASHINGTON DC 20370.510

0

TRG:jdh
Docket No: 
30 March 2001

4440-99

This is in reference to your interest, as counsel, in the case

Enclosed is a letter address t-forming her that her application has been
denied.
enclosed for your records.

It is requested that you transmit the denial letter to her, a copy of which is

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

Sincerely,

W. DEAN PFEIFFER
Executive Director

Enclosures