DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 9448-17 Ref: Signature date This is in reference to your application for correction of your naval record pursuant to Title 10, United States Code, Section 1552. 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. Consequently, your application has been denied. Although your application was not filed in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your application on its merits. A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 28 February 2019. 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, relevant portions of your naval record, as well as applicable statutes, regulations, and policies. You enlisted in the Navy on 16 March 2001 and began a period of active service on 23 July 2001. You served without a disciplinary incident until 23 February 2005 when you went to a Summary Court-Martial (SCM) for drug-related offenses. You were found guilty of the use and distribution of methamphetamine (meth). You received a reduction in rate to the lowest enlisted paygrade, 30 days’ confinement, and forfeitures. During the SCM you provided a sworn statement where you admitted to using meth in April, May, and July 2004. As part of the pretrial negotiation between you and the Convening Authority (CA), on 4 February 2005 you signed a memorandum of understanding (MOU) with the CA where you expressly agreed in writing, among other things, to: (a) waive your right to a General Court-Martial (GCM) or Special Court-Martial (SPCM) and adjudicate your case at a SCM, (b) agreed to plead guilty to the wrongful use of meth, (c) understood that additional charges would also be adjudicated at the SCM, (d) waive any administrative discharge board based on any act or omission reflected in the SCM Charge Sheet, and (e) understood that any such administrative separation could be under other than honorable (OTH) conditions. In the MOU you expressly acknowledged that: (a) you had adequate opportunity to consult with your civilian and military defense counsel regarding the meaning and ramifications of the MOU terms, (b) you were satisfied with both of your military and civilian counsels’ advice, and (c) you signed the MOU on your own free will. On 23 February 2005, you were notified of pending administrative separation action by reason of misconduct due to drug abuse. In accordance with the terms of the MOU, you agreed to waive your right to have your case presented to an administrative separation board. Your commanding officer recommended an OTH discharge and the discharge authority approved this recommendation. On 13 April 2005 you were discharged from the Navy with an OTH characterization of service. The Board carefully weighed all potentially mitigating factors and your contentions that included, but were not limited to: (a) your several character reference letters and post-service career and educational achievements, (b) that on improper advice of counsel and deeply afraid of being deported you accepted a pre-trial agreement requiring you to plead guilty at a SCM and accept involuntary administrative separation, (c) that but for the fear of deportation instilled in him by his appointed counsel you would not have accepted any plea offer, (d) that you were denied due process when improperly advised by appointed counsel as it pertains to the potential of deportation, and such lack of proper legal advice resulted in you believing that he had no alternatives other than to accept the pretrial agreement, (e) that your CA committed material error when it failed to consider the utter lack of evidence you and moved forward with action absent any evidentiary support of wrongdoing, (f) that the evidence ultimately leading to your administrative separation was insufficient as a matter of law and equity to support the awarded characterization of service, narrative reason for separation and reenlistment code, and (g) that absent your own admissions, the government had no evidence supporting your involvement with any controlled substance. However, the Board concluded these factors and contentions were not sufficient to warrant relief in your case given the seriousness of your overall misconduct. Additionally, the Board observed that the record directly contradicts your contentions in several respects. The MOU expressly states that you had adequate opportunity to consult with counsel regarding the MOU, its meaning and the ramifications of the terms therein. You also had two attorneys, one military and one civilian you hired at your own expense. The Board also noted that there is no evidence in your record, and you submitted none to support your contention that you did not receive adequate representation or experienced ineffective assistance of counsel. To the contrary, the MOU stated you were satisfied with your attorneys’ advice and that you entered into the MOU on your own free will. Further, in addition to drug use, you were also found guilty of drug distribution at the SCM. The Board ultimately concluded your drug-related misconduct and separation waiver clearly supported the CA’s decision to process you administratively for a discharge, and for the separation authority to ultimately issue an OTH discharge. Moreover, the Board relies on a presumption of regularity to support the official actions of public officers and, in the absence of substantial evidence to rebut the presumption, to include evidence submitted by the Petitioner, the Board presumes that you were properly tried, convicted, processed, and separated from the Navy. Finally, any suggestion that the evidence was insufficient to convict you absent your own admission and thus doesn’t warrant an OTH is ill-founded, irrelevant, and entirely without merit. You admitted and pleaded guilty to drug use at your SCM. A plea of guilty is the strongest form of proof known to the law. Based upon your plea of guilty alone and without receiving any evidence in the case, a court-martial can find you guilty of the offense to which you pleaded guilty. Accordingly, the Board determined that there was no impropriety or inequity in your discharge, and that your drug-related misconduct merited your receipt of an OTH discharge. 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 matters. New matters are those not previously presented to or 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, Executive Director