DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS 2 NAVY ANNEX
WASHINGTON DC 20370-5100
MEH:ddj
Docket No: 9595-02
15 April 2003
This is in reference to your provisions of title 10 of the
application for correction of your naval record pursuant to 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 15 April
2003. Your allegations of error and 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. In addition, the Board considered
the advisory opinion furnished by NPC memorandum 5420 P0612/028 of 10
March 2003, a copy 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. In this
connection, the Board substantially 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
I
Dear
DEPARTMENT OF THE NAVY
NAVY PERSONNEL COMMAND
5720 INTEGRITY DRIVE
MILLINGTON TN 38055-0000
5420
P0612/028
10 Mar 03
From: Office of Legal Counsel (Pers-06l2)
To: Executive Director, Board for Correction of Naval Records
Via: Assistant for BCNR Matters (Pers-OOZCB)
Subj: RE UEST F I4MENDATION IN CASE OF
End: (1) BCNR File with cover memo dtd 6 Feb 03
1. This responds to your request for comments and a recommendation on
subject BCNR petition (enclosure (1)). Petitioner requests “rescission of
contract with the United States Navy. Recommend denial of petitioner’s
request for reasons set forth in the following paragraphs.
2. Facts:
a. Petitioner is an Armed Forces Professions Scholarship Program
participant who received almost $146,000 in educational fees and stipend
dividends in exchange for a four-year active-duty commitment. Upon
completion of his internship, Petitioner refused to report to active duty
at 2d Marine Division, Camp Lejeune, North Carolina, and instead began a
period of unauthorized absence on 7 Jul 02.
b. In Jul 02, petitioner filed a lawsuit against the Secretary of
the Navy in the Federal District Court for the Central District of
California. Petitioner sought rescission of his contract. On 12 Aug 02,
petitioner sought a preliminary injunction which, if granted, would have
prevented the Navy from issuing a deserter warrant or apprehending him
while he litigated his case in the District Court. The District Court
denied petitioner’s motion for a preliminary injunction and the Ninth
Circuit Court of Appeals denied petitioner’s request for expedited
appellate review. Petitioner then filed a notice of appeal in the Ninth
Circuit Court of Appeals to continue to challenge the denial of the
preliminary injunction.
c. On 17 Oct 02 petitioner voluntarily reported to 2d Marine
Division, Camp Lejeune, North Carolina. Petitioner also
Subj: REQUEST FOR COMMENTS AND RECOMMENDATION IN CASE OF
voluntarily dismissed his lawsuit in the District Court and his appeal in
the Ninth Circuit.
d. Upon reporting for active duty petitioner’s command did take him
to mast for his failure to report and unauthorized absence without leave.
3. Discussion. Petitioner has failed to provide sufficient evidence in
support of his request that he was fraudulently induced to join the Navy.
Petitioner did not include in his submission the contract he requests be
rescinded; rather, he included copies of the complaint for declaratory and
injunctive relief which contains no substantive evidence of fraud on the
part of the Navy and its representatives. Petitioner entered into an
agreement to serve for four years on active duty in the Navy in return for
$145,000 in medical school tuition and fees.
4. Conclusion. There is no record of error or injustice in petitioner’s
navy records.
5. Point of contact is ~ (901) DSN 882—3163.
2
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