DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TJIR
Docket No: 8057-07
3 October 2008
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 1 October 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 the evidence submitted was insufficient
to establish the existence of probable material error or
injustice.
You enlisted in the Navy on 25 August 1977 at age 18 and served
without disciplinary incident for two years and six months.
However, on 19 February and again on 7 April 1980, you received
nonjudicial punishment (NUP) for, presumably, two unspecified
periods of unauthorized absence (UA), missing the movement of
your ship, and wrongful use of a controlled substance. On 10
April 1980 you received NUP for disobedience, failure to obey a
lawful order, breaking restriction, absence from your appointed
place of duty, and wrongful possession of marijuana.
Your record contains a drug disposition message dated 6 May 1980
which states, in part, that you were screened for a drug
rehabilitation program in which you briefly participated, but
were no longer interested in treatment since you had no desire to
discontinue using drugs. About a month later, on 3 June 1980,
you received your fourth NUP for three periods of UA totalling 25
days and three periods of absence from your appointed place of
duty. The punishment imposed was a $400 forfeiture of pay,
reduction to paygrade E-1, and restriction for 30 days.
On 11 February 1981 you were convicted by special court-martial
(SPCM) of two periods of UA totalling 126 days, insubordination,
20 specifications of failure to obey a lawful order, making a
false official statement, and an unspecified offense. You were
sentenced to a §1,000 forfeiture of pay, confinement at hard
labor for five months, anda bad conduct discharge (BCD).
Subsequently, the BCD was approved at all levels of review, and
on 15 December 1981 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 and assertion that your BCD is both an error and
unjust as evidenced by your recent diagnosis of a bi-polar
disorder. It also considered your post service psychiatric,
mental, and/or medical evaluations and the character reference
letters submitted in support of your case. Nevertheless, these
factors were not sufficient to warrant recharacterization of your
discharge because of the frequency and seriousness of your drug
related misconduct and lengthy periods of UA. Also, the Board
noted that even though you were given treatment for your drug
abuse, you had no desire to discontinue the use of illegal drugs
and were not amendable to counselling. Further, even if you had
been diagnosed with a mental and/or medical disorder and
recommended for separation, the recommendations of medical or
psychiatric authorities are not binding on your command,
especially if you met the requirements of another reason for
separation, such as misconduct. In this regard, you were not
diagnosed with any medical or psychiatric condition and the only
reason for your discharge was due to misconduct. 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,
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