Docket No: 1644-20
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 that 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 4 November 2020.  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, and applicable statutes, regulations, and policies. 
 
You reenlisted in the Navy on 4 July 1981.  You received non-judicial punishment (NJP) on 26 October 1982, for two specifications of willful disobedience of a superior petty officer, disobedience of a lawful order, disrespectful in language towards a superior petty officer, and damaging, destroying or losing military property.  On 28 December 1982, you were counseled regarding your marijuana use which was detected in a random drug screening.  On 8 March 1984, you received NJP for wrongful possession of some amount of marijuana, wrongful use of marijuana, and failure to go to at the prescribed time to your appointed place of duty.  As a result of the foregoing, on 8 March 1984, you were notified of the initiation of administrative separation proceedings by reason of misconduct due to drug abuse, at which point, you waived your right to consult with counsel and your right to a hearing before an administrative discharge board.  On 26 March 1984, your commanding officer forwarded your package to the separation authority recommending your discharge from naval service with an other than honorable (OTH) characterization of service.  From 8 May 1984 to 9 May 1984, you were in an unauthorized absence status.  On 9 June 1984, the discharge authority approved and directed your discharge with an OTH characterization of service by reason of misconduct due to drug abuse.  However, prior to your discharge, on 12 June 1984, you were convicted at a summary court martial for failure to obey a restriction order.  On 18 June 1984, you received your third NJP for two specifications of failure to go at the prescribed time to your appointed place of duty.  On 29 June 1984, you were discharged with an OTH characterization of service by reason of misconduct due to drug abuse. 
 
The Board carefully weighed all potentially mitigating factors in your case, including your desire to upgrade your discharge.  You contend that the dyes used in tests that you underwent for your kidney donation caused your positive result for drug use.  You contend your urine sample was not part of a controlled test, and the sample was not sealed.  You further contend you passed several tests before and after your positive result of drug use.  You also contend your job periodically drug tests and you have held this job for seven years.  The Board commends your post conduct sobriety.  Notwithstanding, the Board noted your application did not include evidence to support your contentions, nor was there supporting evidence in your naval records.  After careful consideration of your contentions, the Board did not find evidence of an error or injustice that warrants upgrading your characterization of service.   
 
The Board also reviewed your application under the recent guidance provided in the Under Secretary of Defense’s memorandum dated 25 July 2018 entitled, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations” (USD Memo).  The purpose of the USD Memo is to ease the process for veterans seeking redress and assist Boards for Correction of Military/Naval Records (BCM/NRs) “in determining whether relief is warranted on the basis of equity, injustice, or clemency.”  The USD Memo sets clear standards and principles to guide BCM/NRs in application of their equitable relief authority, and further explains that boards shall consider a number of factors to determine whether to grant relief.  However, even in light of the USD Memo, the Board still concluded given the totality of the circumstances, your request does not merit relief. 
 
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,