DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS

2 NAVY ANNEX

WASHINGTON DC

 

20370-5100

CRS
Docket No: 7511-02
14 November 2002

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 14 November 2002.
injustice were reviewed in accordance with administrative
regulations and procedures applicable to the proceedings of this
Board.
your application,
thereof,
and policies.
opinion furnished by Headquarters Marine Corps dated 26 September
2002, a copy of which is attached.

Documentary material considered by the Board consisted of
together'with all material submitted in support

Your allegations of error and

your naval record and applicable statutes, regulations

In addition, the Board considered the advisory

In this connection, the Board substantially

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.
concurred with the comments contained in the advisory opinion.
Accordingly, your application has been denied.
The names and
votes of the members of the panel will be furnished upon request.
It is regretted that the circumstances of your case are such  that
favorable action cannot be taken.
YOU are entitled to have the
Board reconsider its decision upon submission of new and material
evidence or other matter not previously considered by the Board.
In this regard, it is important to keep in mind that a
presumption of regularity attaches to all official records.

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

Sincerely,

W. DEAN PFEIFFER
Executive Director

Enclosure

DEPAWMENT OF THE NAVY
HEADQUARTERS UNITED STATES MARINE CORPS

2 NAW ANNEX

WASHINGTON, DC 20380-1775

IN REPLY REFER TO

1070
JAM4
6 SEP 2002
2 

MEMORANDUM FOR EXECUTIVE DIRECTOR

RECORDS

BOARD FOR CORRECTION OF NAVAL

I

Sub]:

BOARD FOR CORRECTION OF NAVAL RECORDS (BCNR) APPLICATION
IN THE CASE OF FORMER

that (1) Petitioner's

We are asked to provide an opinion on

Petitioner's request
1.
to be restored to duty at the grade of lance corporal (pay grade
Specifically, we
E-3), with no lost time in service or grade.
are asked to comment on allegations
administrative discharge board did not sufficiently deliberate
upon their decision against
(2) the separation authority did not
Petitioner's discharge,
properly consider the letter of deficiency, dated 31 May 2001,
submitted by Petitioner's counsel,
Petitioner's administrative separation board unfairly prejudiced
the board's recommendations:
restored to duty as an act  
positive urinalysis is the "only blemish" in an "otherwise
exemplary record of service."

*of clemency in recognition that her

Petitioner also requests to be

recommending suspension of

and (3) improper testimony at

We recommend that Petitioner's request for relief be denied.

2.
Our analysis follows.

3.

Background

a.

In October 2000,

Petitioner tested positive on a

urinalysis for use of Amphetamine.
Headquarters Battalion, 1st Marine Division, Camp Pendleton,
California directed that Petitioner's case be heard before an
administrative separation board in accordance with paragraph
6210.5a of the Marine Corps Separation and Retirement Manual
which requires processing for administrative
(MARCORSEPMAN),
separation for all substantiated instances of drug abuse.

The Commanding Officer,

b.

On 25 April 2001,

Petitioner's administrative separation

Petitioner was represented by counsel and was

board convened.
afforded all applicable rights.
recommended that Petitioner be involuntarily discharged for drug
abuse and that her service be characterized as Under Other Than
Honorable Conditions.
the discharge.

The board did not recommend suspension of

The board unanimously

Subj:

BOARD FOR CORRECTION OF NAVAL RECORDS (BCNR) APPLICATION

C .

On 31 May 2001,

counsel for Petitioner submitted a

, 1st Marine Division (MARDIV), Reinforced (Rein))
failed in their duty to

letter- of deficiency to the separation authority (the Commander
(Cmdr) 
alleging that the board members
deliberate and make an independent recommendation regarding
whether the separation authority should suspend the recommended
discharge.
The letter noted the evidence of Petitioner's good
military character presented at the administrative separation
board and contained Petitioner's request that the separation
authority suspend the recommended discharge.

d.

In his letter of 6 June 2001, the Cmdr, 1st MARDIV

(Rein) directed Petitioner's discharge for misconduct due to
drug abuse and that her service be characterized as Under Other
Than Honorable Conditions.
deficiency as enclosure  
reviewed it.

(21, and specifically indicated that he

The Cmdr listed the letter of

Analysis.

4.
Petitioner for misconduct due to drug abuse.
Petitioner's claims is addressed separately below.

No legal error occurred in the discharge of

Each of

a.

The board members did not deliberate upon suspension of
_ Petitioner complains that the board members did
the discharge. 
not consider suspension of the recommended discharge, and argues
that this error warrants her restoration to duty.
is without merit.

This argument

(1) Service regulations regarding involuntary separation
of enlisted Marines do not require that the board members make a
recommendation with regard to suspension of a recommended
discharge; hence,
upon the issue.
board members shall recommend retention or separation, and if
separation is recommended,
However, paragraph 
recommends separation,

there is no requirement that they deliberate
MARCORSEPMAN, directs that
Paragraph 6319.5,

6319.5b instructs that if the board

a characterization of service.

it may recommend suspension.

(2) By asking BCNR to find error in the board's

deliberations, Petitioner seeks to inject legal requirements
regarding jury deliberations in criminal cases into an
administrative context.
instructive.

Paragraph 6316.1, MARCORSEPMAN, is
"There is a sharp and distinct

It provides:

2

Subj:

BOARD 

FOR CORR E CTION 
RMER

0~ NAVAL  

RECORDS

(BCNR) APPLICATIO

N

.

, 

delineation between the administrative process which has as its
purpose the administrative elimination of unsuitable, unfit, or
unqualified Marines,
and the judicial process, the purpose of
which is to establish the guilt or innocence of a member accused
of a crime and to administer punishment when appropriate."
administrative board made all required findings in closed
Second-guessing its deliberative process, a thing
session.
normally not permitted even in criminal cases,
ignores the
administrative nature of the board and invites BCNR to travel
down a slippery slope toward invading the closed-session
discussions of members.

The

(3) The evidence indicates that the board did consider

The record of hearing

suspension of the recommended discharge.
indicates that the board recommended by a vote of 3 to 0 that
the discharge not be suspended.
Even Petitioner's counsel's
recollection of his conversation with the board members shows
that they felt that Petitioher "should be separated."
regarding a suspension of her discharge,
Major
12 June 2001 that the board members felt that Petitioner did not
"rate one."

the senior member,
mall (E-mail) of

indicated in his electronic  

Also,

(4) In any event, the Cmdr, 1st MARDIV (Rein), directed

Petitioner's discharge after having considered Petitioner's
complaint about the lack of discussion regarding suspension of
the discharge.
of a discharge by the board is not binding upon the separation
auth0rity.l
Petitioner's complaint.

Thus, the Cmdr's action directing separation moots

a recommendation for suspension

Significantly,

b.

Failure to consider counsel's letter of  

deficiencv.

Petitioner complains that the separation authority did not
properly consider the letter of deficiency, dated 31 May 2001,
submitted by Petitioner's counsel.
This complaint is without
merit.
(2), and
(Rein) listed the letter of deficiency as enclosure  
specifically indicated that he reviewed it prior to making his
decision.
"boilerplate"

In his letter of 6 June 2001, the Cmdr, 1st MARDIV

Petitioner's description of this as mere

is nonsensical.

1 

See , paragraph  6310,  MARCORSEPMAN.

3

Subj:

BOARD FOR CORRECTION

ION

complai

In his testimony, Major

C .

Testimony of  

Majo- Petitioner objects to the

a trial counsel.

Petitioner complains

cas'e was sent directly to an

testimony was improper and tainted the board.
without basis.

testimony of Major
that Major
This 
explained why Petitioner's  
administrative separation board without first being adjudicated
Based upon the reported concentration of
at a court-martial.
the metabolite in
milliliter), Major
Government could n
physiological effects of the drug.
because it could not prove Petitioner felt the effects of the
drug, the Government could not successfully prosecute Petitioner
Rather,
at a court-martial.
it was relevant to explain the Government's processing of
Petitioner's case and to explain why the allegation of drug use
had not been previously adjudicated in a judicial or nonjudicial
forum.
testimony during

er's urine (expressed in nanograms per
xpressed his opinion that the

Moreover, counsel for Petitioner did not object to  

th:s

This testimony was not improper.

that Petitione
Major

er felt the
hen opined that

the hearing.

5.
Conclusion.
relief be denied

Accordingly,

we recommend that the requested

Branch, Judge Advocate Division

Military Law