DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TJR
Docket No: 2309-09
18 February 2010
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 17 February 2010. The names and votes of the
members of the panel will be furnished upon request. 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 were recalled to active duty in the Navy on 16 March 1989
after serving four years of prior honorable service. On 29 March
1989, after undergoing a physical evaluation, your urine sample,
taken on 20 March 1989, tested positive for cocaine. Although
you admitted using marijuana, you denied using cocaine. However,
the results of a polygraph examination noted that your answers
regarding the use of knowingly ingesting cocaine were untruthful.
As a result, on 16 May 1989, you were convicted by summary
court-martial (SCM) of wrongful use of cocaine and making a false
official statement by denying the use of cocaine. You were
sentenced to a $613 forfeiture of pay and confinement for 17
days.
On 14 June 1989 you were notified of pending administrative
separation action by reason of misconduct due to drug abuse.
After consulting with legal counsel, you elected to present your
case to an administrative discharge board (ADB). Subsequently,
an ADB recommended discharge under other than honorable
conditions by reason of misconduct due to drug abuse. However,
due to an administrative error, specifically, assignment of
improper board members for reservists, this recommendation was
not considered and your commanding officer was directed to
reprocess you for an administrative separation.
In March 1990 you were again notified of pending administrative
separation action by reason of misconduct due to drug abuse.
After consulting with legal counsel, you elected to present your
case to an ADB. On 15 March 1990 a second ADB recommended
discharge under other than honorable conditions by reason of
misconduct due to drug abuse. On 3 April 1990 your commanding
officer, in concurrence with the ADB, also recommended discharge
under other than honorable conditions by reason of misconduct due
to drug abuse. On 26 April 1990 the discharge authority approved
these recommendations and directed your commanding officer to
issue you an other than honorable discharge by reason of
misconduct due to drug abuse, and on 4 May 1990, you were so
discharged.
The Board, in its review of. your entire record and application,
carefully weighed all potentially mitigating factors, such as
your period of honorable service, desire to upgrade your
discharge, and assertion that cocaine was “induced” to you. It
also considered your assertion that the ADB was improperly
convened. Nevertheless, the Board concluded these factors were
not sufficient to warrant recharacterization of your discharge
because of the seriousness of your drug related misconduct which
resulted in a SCM. Further, there is documented evidence in the
record that is contrary to your assertion that the ADB was
improperly convened. Finally, there is no evidence in the
record, and you submitted none, to support your assertion
regarding how you tested positive for cocaine use. Accordingly,
your application has been denied.
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,
Lodeos
W. DEAN PF
Executive
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