DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 2964-20 Ref: Signature Date This is in reference to your application of 14 March 2020 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 30 April 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. Regarding your request for a personal appearance, the Board determined that a personal appearance by you with or without counsel will not materially add to their understanding of the issues involved. Therefore, the Board determined that a personal appearance was not necessary and considered this case based on the evidence of record. You enlisted in the Navy and began a period of active service on 23 January 2002. On 8 June 2003, you went to non-judicial punishment (NJP) for both unauthorized absence (UA) and failing to obey a lawful order. On 7 July 2003, you went to NJP for failing to obey a lawful order, and for the wrongful use of a controlled substance. Subsequently, your command provided you notice that you were being administratively processed for separation from the Navy for misconduct due to drug abuse. Unfortunately, the administrative separation documents are not in your record. However, the Board relied on a presumption of regularity to support the official actions of public officers, and given the narrative reason for separation and corresponding separation code as stated on your DD Form 214, the Board presumed that you were properly processed and discharged from the Navy for misconduct due to drug abuse and that you waived your right to an administrative discharge board. Ultimately, on 4 September 2003, you were discharged from the Navy for misconduct with an other than honorable (OTH) characterization of service and assigned an RE-4 reentry code. On 24 February 2006, the Naval Discharge Review Board (NDRB) determined that your discharge was proper as issued and no change was warranted. You did not mention any issues associated with homosexual conduct or homosexuality on your NDRB application. The Don’t Ask, Don’t Tell Repeal Act of 2010, and the Under Secretary of Defense Memo of 20 September 2011 (Correction of Military Records Following Repeal of Section 654 of Title 10, United State Code), both set forth the Department of the Navy’s current policies, standards, and procedures for correction of military records following the “don’t ask, don’t tell” (DADT) repeal. The current policy now provides service Discharge Review Boards with the guidance to grant requests to change the characterization of service to “honorable” or “general (under honorable conditions),” narrative reason for discharge to “secretarial authority,” separation code to “JFF,” and reentry code to “RE-1J” when the original discharge was based solely on DADT or a similar policy in place prior to enactment of it, and there are no aggravating factors in the record, such as misconduct. The Board carefully weighed all potentially mitigating factors, such as your contentions that included, but were not limited to: (a) that about one month before the urinalysis test, coworkers discovered you were a homosexual when they were at your apartment, (b) that you were somehow targeted for being a homosexual, (c) that you have never used marijuana and had no idea why you failed the test, and (d) the command sweep urinalysis test collection and storage procedures were improper and tainted. 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 concluded that DADT policy guidance did not apply to the circumstances surrounding your discharge. Your command processed you for misconduct due to drug abuse following a positive urinalysis for a controlled substance. Nowhere in your military record is there any mention of your homosexuality, any allegations of homosexual conduct, or any homosexual admissions on your part prior to your discharge. The Board also determined that there was no credible and convincing evidence presented to indicate that your urinalysis was tainted or that somehow your command wrongly targeted you for discharge and acted improperly. The Board also noted that the record shows you were notified of and waived your procedural rights in connection with your administrative separation. In doing so, you gave up your first and best opportunity to advocate for retention or a more favorable characterization of service. Accordingly, the Board determined that your discharge was in accordance with all Department of the Navy directives and policy at the time of your discharge. Additionally, the Board 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 “in determining whether relief is warranted on the basis of equity, injustice, or clemency.” The USD Memo noted that “increasing attention is being paid to…the circumstances under which citizens should be considered for second chances and the restoration of rights forfeited,” and that “BCM/NRs have the authority to upgrade discharges or correct military records to ensure fundamental fairness.” 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 that, 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, 5/15/2020