DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100

TRG
Docket No: 7378-03
9 August 2004

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 3 August 2004. 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. In addition, the Board considered the advisory opinion furnished by Headquarters Marine Corps, a copy of which is enclosed. The Board also considered the rebuttal to the advisory opinion dated 31 March 2004.

After carçful and conscientious consideration of the entire record, the Board found that the evidence submitted was insufficient to establish the existence of probable material

You enlisted in the Marine Corps for four years on 24 May 1999 at age 19. You then served without incident for about 46 months. However, on 10 April 2003, a Navy drug laboratory reported that your urine sample had tested positive for amphetamine/methamphetaiflifle. Thirteen days later, on 23 April 2003 you received nonjudicial punishment (NJP) for using drugs. The punishment imposed included a reduction in grade and forfeitures of pay.

On 8 May 2003 you were notified of separation processing by reason of misconduct due to drug abuse. In connection with this processing, you elected to waive the right to consult with counsel and to have your case heard by an administrative discharge board (ADB). After review, the discharge authority directed discharge under other than honorable conditions by reason of misconduct. You were so discharged on 20 May 2003. At that time you had completed 3 years, 11 months and 27 days of your four year enlistment. You were not recommended for reenlistment and were assigned an RE-4 reenlistment code.

In your application you are requesting that the NJP be removed from your record. However, the Board substantially concurred with the comments contained in the advisory opinion and concluded that your request for removal of the NJP should be denied.

In its review of your requests to recharacterized your service and change the reason for discharge, the Board carefully weighed all potentially mitigating factors, such as your period of good service, the fact that you had almost completed your enlistment, and your contention that you have been a good citizen since discharge. You further contend that you did not use drugs and that there must have been some error in the drug testing process. In support of your contention, you point out that you knew urinalyses were held on a regular basis and state that you would never have used drugs when your enlistment was about to expire, especially since you were planning to attend college and enter the law enforcement field. However, the Board found that these factors and contentions were not sufficient to warrant recharacterizatiOn of your discharge or to change the reason for your discharge given your use of drugs. The Board noted that you did not request that your case be heard by an ADB. At this forum, you would have been able to call witnesses and attempt to convince the ADB of your innocence. The Board thus concluded that the discharge by reason of misconduct 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.

You are still eligible to request a review of your discharge by the Naval Discharge Review Board (NDRB). If you desire such a review, you should complete the enclosed application, DD Form 293, and submit it to the address on the form. As indicated you have the option of requesting a personal appearance hearing before that Board.

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,

Enclosures