Docket No.10758-18 
Ref: Signature Date 
    
Dear : 
 
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 for Correction of Naval Records (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, sitting in executive session, considered your application on 24 October 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, applicable statutes, regulations, and policies, and the 3 September 2019 advisory opinion (AO).  
 
Regarding your request for a personal appearance, the Board determined a personal appearance with or without counsel will not materially add to their understanding of the issues involved.  Therefore, the Board determined a personal appearance was not necessary and considered your case based on the evidence of record. 
 
You enlisted in the Marine Corps on 23 May 1998.  On 20 April 1999, you received nonjudicial punishment (NJP) for wrongfully purchasing alcohol for an underage Marine.  On 15 August 2001, you were contacted by NCIS and informed that you had tested positive on a drug urinalysis, and you admitted to drug use during leave periods.  On 6 February 2002, you were convicted by summary court-martial for wrongfully using marijuana on 22 occasions between December 1998 and June 2001.  Subsequently, you were notified of pending administrative separation action by reason of misconduct due to drug abuse.  After you waived your procedural rights, your commanding officer recommended you be discharged with an other than honorable (OTH) characterization of service by reason of misconduct due to drug abuse.  The discharge authority approved the recommendation and directed you be discharged with an OTH characterization of service by reason of misconduct.  On 18 July 2002, you were discharged with an OTH characterization of service. 
 
Your request for an upgrade to your characterization of service was reviewed in consideration of your contention your “behavior was based on a substance abuse problem based on my mental health condition of depression.”  Your request was fully and carefully considered by the Board in light of the Secretary of Defense's 3 September 2014 memorandum, “Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requested by Veterans Claiming Post Traumatic Stress Disorder,” the 25 August 2017 memorandum, “Clarifying Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modification of their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment,” and the 25 July 2018 memorandum, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations.” 
 
As part of the Board’s review, a mental health professional reviewed your request and provided the Board with an AO on 3 September 2019.  The AO noted you did not submit any medical documentation of a mental health diagnosis.  The AO further states there is insufficient evidence to attribute your misconduct to a mental health condition.  The AO was provided to you on 4 September 2019, and you were given 30 days in which to submit a response.  When you did not provide a response, your case was submitted to the Board for consideration. 
 
The Board carefully reviewed your application, weighed all potentially mitigating factors, and considered your contention that your substance abuse problem was due to your depression.  The Board further considered your contention that you sought medical help and have now been sober since 2006.  Further, you contend you help many veterans with substance abuse problems.  Lastly, the Board considered your contention that the only evidence of your drug use was your verbal confession and honesty; there were no positive drug tests.  The Board, however, concurred with the AO and determined there is insufficient evidence to support a finding that a mental health condition contributed to or mitigated your misconduct.  The Board did not find evidence of an error or injustice that warrants changing your characterization of service. 
 
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 the submission of new matters, which will require you to complete and submit a new DD Form 149.  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,