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NAVY | BCNR | CY2006 | 09697-06
Original file (09697-06.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
B0ARD FOR CORRECTION OF NAVAL RECORDS
                                    2 NAVY ANNEX
WASHINGTON DC 2O37O-5100


                                    TRG
         Docket No:9697-06
         21 March 2008


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 18 March 2008. 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 that the evidence submitted was insufficient to establish the existence of probable material error or injustice.
You enlisted in the Navy on 13 February 1989 and then served in an excellent manner for more than 16 years. During this period you were promoted to petty officer first class. On 11 July 2005 the Navy Drug Laboratory reported the results of a urinalysis which showed that you had used cocaine.
On 2 August 2005 you were notified of discharged processing by reason of misconduct due to drug abuse. An administrative discharge board (ADB) convened on 27 September 2005. During the ADB, your counsel submitted the results of a polygraph which indicated that you were truthful in your assertion that you had not used cocaine. The polygraph examiner testified that the tests were very accurate and he described how the test was conducted. The examiner concluded that you were not being deceptive when you answered “no” to the question “did you knowingly use cocaine”. You subsequently testified in your own behalf and your counsel made a closing argument. However, the ADB concluded that you had committed misconduct due to drug abuse but recommended that you be issued a general discharge. This recommendation was approved and you received a general discharge on 22 November 2005.



In connection with your application to the Board you submitted to another polygraph examination which concluded that you were not being deceptive when you denied knowingly using cocaine. Additionally you have submitted character references attesting to your good character and performance of duty and who stated they were shocked to hear of the positive urinalysis. Your current counsel believes that you received ineffective assistance of counsel during the ADB and that the members were predisposed to find that you had used drugs.
In reaching its decision, the Board noted that you have never provided any scenario which may have resulted in your unknowing ingestion of cocaine. Concerning the polygraphs it is clear that they are not completely accurate and are generally not acceptable in a court proceeding. Although the rationale of the ADB members is unknown, it is clear that they rejected the report of the polygraph examiner and concluded that you had knowingly used drugs. Given the circumstances, the Board could not conclude that the ADB members were unreasonable or abused their discretion when they concluded that you had knowingly used cocaine. Since a discharge under other than honorable conditions was authorized, it is clear that considerable leniency was extended to you when a general discharge was recommended and approved. The Board concluded that you were properly discharged and that reinstatement in the Navy is not warranted.
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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