Docket No: 1690-20
Ref: Signature Date
 
 
Dear  :    
 
This is in reference to your application for correction of your naval record pursuant to Section 1552 of Title 10, United States Code.  After careful and conscientious consideration of relevant portions of your naval record and your application, the Board for Correction of Naval Records (Board) found the evidence submitted 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 18 December 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, to include the 25 July 2018 guidance from the Under Secretary of Defense for Personnel and Readiness regarding equity, injustice or clemency determinations (Wilkie Memo).   
 
The Board determined that your personal appearance, with or without counsel, would 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 23 February 1981.  On your enlistment paperwork you admitted pre-service drug use.  On 19 January 1982 you received non-judicial punishment (NJP) for possessing drug paraphernalia.  The same day, you were issued a “Page 13” (Page 13) counseling warning documenting your drug-related incident.  The Page 13 expressly warned you that any further drug-related incidents may result in disciplinary action or administrative separation.  However, on 9 December 1982 you went to NJP for the wrongful use/possession of a controlled substance (marijuana).   
 
On 27 January 1983 you were notified that you were being processed for an administrative discharge by reason of misconduct due to drug abuse.  You elected in writing to request an administrative separation board (Adsep Board).   
 
On 15 March 1983 an Adsep Board convened in your case.  At the Adsep Board you were represented by civilian counsel and a Navy Judge Advocate.  Following the presentation of evidence and witness testimony, the Adsep Board members unanimously determined that you the committed misconduct as charged.  Subsequent to the misconduct finding, the Adsep Board members recommended that you be separated from the naval service with an other than honorable (OTH) characterization of service, but voted to suspend the separation for twelve months.  On 18 March 1983 your commanding officer concurred with the Adsep Board findings and recommendations except he recommended the disapproval of your suspended separation.  Ultimately, Commander Navy Personnel Command (PERS) approved and directed your separation, and on 22 April 1983 you were discharged from the Navy for misconduct with an OTH characterization of service and assigned an RE-4 reentry code.  On 2 March 1995 the Naval Discharge Review Board determined that your discharge was proper as issued and no change was warranted.  
 
The Board carefully weighed all potentially mitigating factors, including your contentions that included, but were not limited to:  (a) you were unjustly separated from the Navy after the board voted to suspend your separation for twelve months, (b) PERS may change a discharge to a more creditable one, but not a less favorable one, (c) you had a stellar service record and made positive contributions to the Navy, (d) your current discharge status has been detrimental to your personal life and employment, (e) your age at the time of your offense, how you have progressed since the Navy, and your outstanding performance are all mitigating factors to consider, (f) your commanding officer improperly deviated from the Adsep Board’s recommendation, and (g) the BUPERSMAN required a discharge no less favorable than the Board’s decision.  Unfortunately, the Board determined these mitigating factors and contentions were not sufficient to warrant upgrading your discharge or granting any other relief in your case. 
 
The Board determined that there were no post-Adsep Board procedural or due process errors that prejudiced you.  The governing instruction at the time of your separation and discharge was the Naval Military Personnel Manual (MILPERSMAN).  The BUPERSMAN you cited as authority was superseded by the MILPERSMAN on 1 January 1982.  When an Adsep Board recommends a suspended separation, the separation authority is elevated to PERS to provide an additional procedural safeguard to the respondent prior to separation.  Accordingly, it was appropriate for PERS approve your OTH separation without suspension, and such decision was entirely within the discretion of PERS as the separation authority.  PERS disregarding the Adsep Board’s recommendation was not an improper deviation.  PERS’ decision not to suspend a separation (whether honorable, general, or OTH) does not equate to approving a less favorable action, unlike the situation if PERS had approved a less favorable discharge characterization from what an Adsep Board recommended. 
 
Additionally, absent a material error or injustice, the Board generally will not summarily upgrade a discharge solely for the purpose of facilitating VA benefits, or enhancing educational or employment opportunities.  The Board determined that significant negative aspects of your conduct and/or performance outweighed any positive aspects of your military record, and that your overall service is not otherwise so meritorious to warrant a discharge upgrade.  In the end, the Board concluded that you received the correct discharge characterization and reentry code based on the seriousness of your misconduct, and that such discharge action was in accordance with all Department of the Navy directives and policy at the time of your discharge.  
 
Lastly, the Board noted that character of military service is based, in part, on conduct and overall trait averages which are computed from marks assigned during periodic evaluations.  Your overall active duty trait average was 2.8 in conduct/military behavior.  Navy regulations in place at the time of your discharge required a minimum trait average of 3.0 in conduct/military behavior for a fully honorable characterization of service.  The Board determined that your conduct/military behavior marks during your active duty career were a direct result of your misconduct, which ultimately supported the separation authority’s decision to issue you an OTH characterization of discharge.  Accordingly, the Board determined that there was no impropriety or inequity in your discharge and the Board found that the misconduct reflected in your record merited your receipt of an OTH discharge. 
 
The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in your case in accordance with the Wilkie Memo.  These included, but were not limited to, your desire to upgrade your discharge and all of your contentions and assertions.  Based upon this review, the Board concluded these potentially mitigating factors were insufficient to warrant relief.  Accordingly, given the totality of the circumstances, the Board determined that your request does not merit relief.   
 
You are entitled to have the Board reconsider its decision upon 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,