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NAVY | BCNR | CY2006 | 10239-06
Original file (10239-06.rtf) Auto-classification: Denied
DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
                                    2 NAVY ANNEX
          WASHINGTON DC 20370-5 100       





         TRG
 Docket No:10239-06
 25 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 reenlisted in the Navy on 17 March 1994 at age 25 with about five years of active service on prior enlistments. On 1 December 1994 you were arrested in Maryland (MD) for having .05 grams of marijuana in the ashtray of the vehicle you were driving. On 30 March 1994 you were convicted in a MD district court of possession of .05 grams of a burnt marijuana cigarette. You were fined $500 and given 36 months of probation.
On 30 May 1995 you were notified of discharge processing by reason of misconduct due to drug abuse. An administrative discharge board convened on 14 August 1995 and unanimously found that you had committed misconduct due to drug abuse. A majority of the Board recommended discharge under other than honorable conditions by reason of misconduct due to drug abuse.
Subsequently, your defense counsel submitted a letter of deficiencies. He stated that the marijuana was found after a civilian police search of your vehicle one week after the automobile was in the control of your 19 year old niece. He believed that you were only convicted because she refused to testify and civilian counsel was too expensive. Your counsel also noted your prior excellent service and the fact that you
 were stationed at the brig where you and your vehicles were subjected to constant searches for drugs. He also noted that you had never tested positive on any urinalysis.
Your commanding officer recommended a discharge under other than honorable conditions stating, in part, as follows:
His niece has been a mystery witness throughout this whole affair.
On one hand he would have us believe, that he is close enough to
her to borrow her car for a long trip. On the other, that they are
so estranged that he was unable to obtain her cooperation either
in MD District Court or at the Admin[istrativell Discharge
proceeding. Furthermore, his reasons for switching cars, as
elaborated, are neither logical nor likely. Applicant was given a
position of special trust. He betrayed that trust and he should be
separated.
After review, the discharge, authority directed discharge under
other than honorable conditions and you were so discharged on 27
October 2005.
In its review of your application the Board carefully weighed all potentially mitigating factors, such as your period of good service and the fact that in 2005 the Governor of MD issued you a full and unconditional pardon for your 1995 conviction for use of marijuana. You contend, in effect, that racial profiling led to your initial stop for speeding and the search which led to the discovery of the marijuana in the car you were driving.
The Board found that these factors and contention were not sufficient to warrant recharacterization of your discharge given your conviction by the civilian court of possession of marijuana. There is no documentation in the record and you have submitted none to support your version of events in 1994 which led to your arrest and conviction. This problem was noted by your commanding officer in his recommendation for discharge. The Board concluded that the discharge was proper as issued and no change is 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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