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NAVY | BCNR | CY2004 | 09292-04
Original file (09292-04.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
                                                       BOARD FOR CORRECTION OF NAVAL RECORDS
                                                               2 NAVY ANNEX
                                                       WASHINGTON DC 20370-5100
                                                              
                                                               TJR
                                                                                          Docket No: 9292-04
                                                                                          31 August 2005



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 23 August 2005. 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.
After careful and conscientious consideration of the entire record, the Board found the evidence submitted was insufficient to establish the existence of probable material error or injustice.
You enlisted in the Navy on 24 October 1980 at age 18. You served without disciplinary incident until 13 June 1984, when you received nonjudicial punishment (NJP) for wrongful possession and use of marijuana and six periods of failure to go to your appointed place of duty. The punishment imposed was restriction for 30 days, extra duty for 22 days, a $596 forfeiture of pay, and reduction to paygrade E-l.
During the period from 19 July to 24 August 1984 you were referred for alcohol and drug abuse rehabilitation after being arrested by civil authorities for public intoxication. At this time you reported a significant history of drug use from 1979 to 1984. You were diagnosed as alcohol dependent and recommended for an aftercare program.
After consulting with legal counsel on 15 November 1984 you submitted a written statement in which you admitted to homosexuality. Shortly thereafter, on 26 November 1984, you were notified of pending administrative separation action by reason of
 unfitness due to homosexuality. After consulting with legal counsel, you waived your right to present your case to an administrative discharge board (ADB) in exchange for a recommendation for a general discharge. Subsequently, your commanding officer recommended a general discharge by reason of unfitness due to homosexuality even though you had experienced some problems with drugs and alcohol. However, on 19 December 1984, the discharge authority disapproved this recommendation and directed your commanding officer to reprocess you for separation under other than honorable conditions by reason of misconduct due to drug abuse and homosexuality. The discharge authority stated, in part, as follows:
Reprocess for homosexuality and misconduct due to drug abuse.. . . use ADB. . . . action appropriate as Member’s admission of homosexuality is a violation, moreover, Member’s drug abuse takes precedence over homosexual conduct. . . . when processing Member for homosexuality specific verbatim reason for processing must conform to (authorized) reasons.. .. reason for processing (for homosexuality) is too general.
As a result of this action, on 27 December 1984, you were again notified of pending administrative separation action by reason of misconduct due to drug abuse and homosexuality. After consulting with legal counsel, you waived your right to present your case to an ADB. Your commanding officer then recommended separation under other than honorable conditions. On 24 January 1985 the discharge authority approved this recommendation and directed an other than honorable discharge, and on 5 February 1985 you were so discharged.
The Board, in its review of your entire record and application, carefully weighed all potentially mitigating factors, such as your youth, post service conduct, passage of time, character reference letters, and academic transcript. It also considered your assertion that your discharge should be upgraded because you signed a conditional waiver for a general discharge. Nevertheless, the Board concluded these factors were not sufficient to warrant recharacterization of your discharge because of your drug related misconduct. Further, applicable directives state that even if a Sailor is processed for separation by reason of homosexuality, if the Sailor meets the requirements of another reason for separation, such as misconduct, the Sailor will be processed for the latter reason. Additionally, the separation authority rejected the conditional waiver, and you were once again afforded all of your procedural rights. Finally, no discharge is automatically upgraded due solely to the passage of time or an individual’s good behavior. 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

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