Docket No: 1821-20
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 relevant portions of your naval record and your application, 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 26 October 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, relevant portions of your naval record, 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 its 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 and began a period of active duty on 26 October 2000.  You received nonjudicial punishment (NJP) on 26 February 2002, for a period of unauthorized absence (UA) and wrongful use of marijuana.  On 11 March 2002, you were notified of administrative separation proceedings being initiated against you, and you waived all of your procedural rights, including your right to appear before an Administrative Board.  On 17 March 2002, Commanding Officer (CO),  forwarded your case to the Separation Authority and recommended your separation under other than honorable (OTH) conditions, and cited your wrongful use of ecstasy and long-term unauthorized absence.  The Board noted that although the CO cited the wrongful use of ecstasy, according to your record, you received NJP for the wrongful use of marijuana.  
 
You were discharged on 12 April 2002, on the basis of misconduct, and received an OTH characterization of service and a reentry (RE) code of RE-4.  In 2016, you petitioned the Naval Discharge Review Board (NDRB) for a change to your record, in part to receive medical treatment.  On 20 December 2016, NDRB informed you that it found your discharge to be proper as issued. 
 
In your application for correction, you ask for an upgrade to your OTH discharge to reflect a general characterization of service.  You state that you had an arm injury that was not diagnosed and treatment was not administered. 
 
The Board, in its review of your entire record and application, carefully weighed all factors, including your contention that you suffered an undiagnosed and untreated arm injury.  The Board reviewed your application and available service record and did not find evidence or information regarding in-service or post-discharge treatment of a service-connected arm injury.  The Board noted that SECNAVINST 1850.4 series states processing for administrative discharge for misconduct takes precedence over processing for disability.  Even in consideration of your assertion of suffering from a service-connected injury, the Board found that your misconduct as evidenced by your NJP for wrongful use of a controlled substance and UA, was an appropriate basis for your administrative discharge.  Given the seriousness of your misconduct of the use of a controlled substance while on active duty, the Board found that your OTH discharge was appropriate.  The Board determined that you did not provide sufficient information to overcome the misconduct in your record.  Accordingly, the Board found that corrective action is not warranted. 
 
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 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,