DEPARTMENTOFTHE NAV
Y
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TRG
Docket No:
20 February 2002
8339-00
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 12 February 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 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
insufficient to establish the existence of probable
error or injustice.
was
material
You enlisted in the Navy for four years on 28 April
1997 at age
27 and subsequently extended that enlistment for 12
months to
establish your eligibility for an enlistment bonus.
documentation to support separation processing, is not filed in
your service record.
However, the record clearly shows that you
were separated from active duty on 10 December 1997 with an entry
level separation by reason of entry level performance and
conduct, and were assigned an RR-4 reenlistment code.
time you had completed 7 months and 13 days of active service.
At that
The
plantar wart.
Your medical record shows that during your service you were
treated for shin splints, nausea, vomiting, diarrhea and for
removal of a
prepared incident to your separation states that you were
physically qualified for separation from active duty.
The
medical history prepared at that time indicates that you were
being administratively separated for inability to perform
adequately.
The report of medical examination
YOU contend that while in recruit training you were
accused of insubordination and were physically abused because you
were ordered to exercise after being placed on light duty for
However, it is clear from your statement and
shin splints.
documentation in the medical record that you ultimately completed
recruit training and reported for advanced training.
Unjustly
that after you began advanced training,
You contend, in effect,
resulting in restriction, extra
you continued to be mistreated,
You also allege tat because of a
duties, and sleep deprivation.
lack of sleep, you failed a test and were dropped from training,
You state that at the
which resulted in separation processing.
time of your enlistment you were a summa cum laude graduate of
the University of Maine and contend, in effect, that there must
be some sinister explanation for your failure of the Navy test.
Finally, you contend that the separation processing was improper
because you were denied the right to consult with counsel, were
not properly notified of separation processing and the reason for
processing, and were otherwise denied your procedural rights.
Since the administrative processing was flawed, you contend that
your separation was improper and you must be returned to active
duty as if you had never been separated.
As indicated, the separation processing documentation is not
filed in your record.
The Board has order and received several
updated copies microfiche record, but this documentation has not
been added to the record.
Since you were separated on 10
December 1997, more than four years ago and local files are
destroyed after two years,
documentation concerning your separation is not available.
state that you do not have any such documentation in your
possession, and contend that such records never existed and your
separation was contrary to law.
it has been determined that additional
You
The Board's regulations state that there is a "presumption of
regularity to support the official actions of public officers,
and in the absence of substantial evidence to the contrary, will
presume that they properly discharged their official duties."
In addition, Section 3, subparagraph d(2) of the regulations
state, in part, as follows:
.
. The Board may deny an application in executive
.
session if it determines that the evidence of record
fails to demonstrate the existence of probable material
error or injustice.
The Board relies of a presumption
of regularity to support the official actions of public
officers and, in the absence of substantial evidence to
the contrary, will presume that they properly
discharged their official duties.
burden of overcoming this presumption
Applicants, have the
. . . .
.
2
Further in a 1998 decision,
Claims, in an Army Board for Correction of Military Records case,
upheld the presumption of regularity, stating, in part, that it
is the responsibility of the applicant to procure evidence not
contained in the official file.
enclosed.
the United States Court of Federal
A copy of this decision is
the Board concluded that there was a
Exercising this presumption,
legitimate reason to process you for separation, the separation
processing was begun within the first 180 days of your service,
you were properly notified of the reason for separation and
afforded an opportunity to consult with military counsel and to
exercise your other procedural rights.
individuals are routinely separated while undergoing training,
and the training commands are knowledgeable concerning the
separation procedures.
of evidence to the contrary, your separation from the Navy was
proper as issued and no change is warranted.
The Board concluded that in the absence
The Board is aware that
Accordingly, your application has been denied.
votes of the members of the panel will be furnished upon request.
The names and
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
3
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