DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 9468-17 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, personal statement, your attorney’s written arguments, together with all material submitted in support thereof, relevant portions of your Navy service records, and applicable statutes, regulations and policies. Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to their understanding of the issues involved. Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record. You enlisted in the Navy on 14 December 1982. Your enlistment paperwork notes pre-service experimentation and use of controlled substances. On 14 January 1983 you underwent a drug screening and a Navy medical officer (MO) determined that there was no evidence of drug addiction or dependence for you. On 25 March 1983, you went to non-judicial punishment (NJP) for misbehavior of a sentinel or lookout (improper watchstanding). On 29 April 1983, you received another NJP, this time for wrongful appropriation of another person’s rental car and drunk driving (DUI). While you had a civilian DUI pending, you were interviewed and referred by the Counseling and Assistance Center (CAAC) representative to the ship’s medical department for a dependency evaluation. The MO determined that you were neither psychologically nor physiologically dependent on alcohol and did not require hospitalization. The MO recommended a NASAPP/Navy Drug-Alcohol Substance Abuse Program (NASAPP). On 9 January 1984 you received a civilian DUI conviction. On 20 March 1984, you received a letter stating that you have been identified as a drug or alcohol abuser, but that you still possess potential for further service. The letter also specified a rehabilitation regimen entitled Drug and Alcohol Abuse Program Regimen (DAAPR) for you to complete, and that you were disqualified from reenlisting for 180 days from the date of your civilian DUI conviction. On 13 April 1984 you were issued a written counselling warning for your civilian DUI conviction and advised that any further deficiencies in your performance and/or conduct may result in disciplinary action and administrative separation processing. On 10 May 1984, you were interviewed and referred by the CAAC representative to the ship’s medical department for another dependency evaluation due to your drug-related arrest. The MO determined that you were neither psychologically nor physiologically dependent on marijuana, considered to be an experimenter and recreational user, and did not require hospitalization. The MO recommended urinalysis surveillance and NASAPP again. On 8 June 1984, you went to NJP for the use of marijuana on divers occasions over a two-week period and for possession of drug paraphernalia. You received 45 days’ restriction/extra duties, a reduction in rank to E-2 and forfeitures of pay. A Substance Abuse Report (SAR) dated 11 June 1984 documented your NJP and your assignment to the “1x24 Program,” but also stated that you completed NASAPP and had potential for further service. On 17 July 1984, you went to a Summary Court-Martial (SCM) for unauthorized absence and for missing restricted men’s musters on board your ship. Finally, on 14 September 1984, a urine sample you provided as part of your surveillance program tested positive for a controlled substance. A SAR dated 2 October 1984 indicated that you were not drug dependent and further documented your assignment to the “1x24 Program.” On 11 October 1984, you were notified of pending administrative separation action by reason of misconduct due to drug abuse. You were advised of your right to consult with counsel before making a decision to request or waive your rights. You did not desire to consult with counsel. On 11 October 1984, you elected to obtain copies of all administrative separation documentation, but you expressly waived your procedural right to an administrative separation board. On 15 October 1984, your commanding officer recommended an other than honorable (OTH) discharge. The discharge authority directed an OTH discharge by reason of misconduct due to drug abuse on 21 October 1984. On 1 November 1984, 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: you did not receive due process, were misled into accepting an OTH discharge, that your command failed to ensure that you received some kind of treatment following two alcohol-related incidents, that your untreated mental health issue contributed to your misconduct and mitigates your behavior, that you were never personally served with your separation documents and were never afforded the opportunity to exercise your rights in connection with the administrative separation, that the administrative separation documents that were executed in your case reflect a host of irregularities that do not illustrate a presumption of regularity, that the medical officer erred in not requiring medical assessment based on incomplete information or operational tempo, that by failing to treat you and allowing you to continue in service that the Navy set you up to receive a highly prejudicial OTH discharge, your exemplary post-service conduct and career, and that the lack of separation documents reflect that you were pushed into the system, denied basic substantial due process rights, and rushed through the process without complete and thorough representation. However, the Board concluded that there was insufficient evidence to support your contentions. The message your ship sent to Naval Personnel Command (NPC) on 15 October 1984, outlined all of the circumstances surrounding your administrative separation and the procedural steps taken in your case. Such procedural steps included that you were served with separation documentation and that you chose to exercise some, and waive other rights. Contrary to your contentions, your record also reflects that underwent at least two separate screenings for drug and/or alcohol dependency and were found not to be physiologically or psychologically dependent both times. As part of such screenings you were recommended to attend a NASAPP treatment program and undergo a urinalysis surveillance program. Your record also reflects on 11 June 1984 that you completed a NASAPP treatment program. Further, despite receiving a counselling warning on 20 March 1984, you continued to commit serious misconduct. The Board also noted that there is no evidence in your record, and you submitted none to support your contention that any of your due process rights were violated in connection with your administrative separation. You contend that the lack of separation documents in your official record indicates several due process violations. However, just because certain documents are not present in your service record today despite being referred to as existing in other documents does not suggest that they never existed in the first place. The 15 October 1984 message your ship sent to NPC in paragraphs seven through ten describe the paperwork you were served with and the rights you personally elected. 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 processed and separated from the Navy. Finally, any suggestion that the Navy is somehow responsible for your personal and professional shortcomings leading to your discharge is ill-founded and entirely without merit. Accordingly, the Board determined that there was no impropriety or inequity in your discharge, and the Board found that your misconduct merited your receipt of an OTH discharge. Additionally, the Board noted the record shows you were notified of and waived your procedural rights in connection with your administrative separation. In doing so, you gave up your first and best opportunity to advocate for retention or a more favorable characterization of service. The Board ultimately concluded your egregious pattern of misconduct clearly supported the Commanding Officer’s decision to process you administratively for a discharge, and for the separation authority to ultimately issue 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, 5/31/2019