Docket No: 329-20
Ref: Signature Date
 
 
Dear   
 
This letter is in reference to your reconsideration request dated 3 January 2020.  You previously petitioned the Board for Correction of Naval Records (Board) and were advised that your application had been disapproved.  After careful and conscientious consideration of the entire record, the Board found the evidence submitted was insufficient to establish the existence of probable material error or injustice.      
 
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 13 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.  
 
Regarding your request for a personal appearance, the Board determined that a personal appearance 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 your case based on the evidence of record. 
 
You enlisted in the Navy on 4 October 1982.  In your pre-enlistment documents, the record reflects that you admitted to pre-service marijuana use, and the Board noted that your enlistment physical exam and medical history both noted no psychological/neurological conditions or symptoms.  Additionally, your record reflects that you were granted a pre-service drug abuse waiver to enlist.  You also signed the “USN Drug Abuse Statement of Understanding” on 5 October 1982 and received further briefing on the Navy’s policies on drug abuse during initial recruit training. 
 
On 20 October 1983 following a random sample urinalysis, you tested positive for marijuana use (THC).  Following your positive urinalysis, you were enrolled in the  rehabilitation program.  However, on both 20 November 1983 and 31 March 1984 you again tested positive for THC.  On 9 May 1984 you underwent a drug dependency evaluation.  The Medical Officer determined that you were not physiologically or psychologically drug dependent and that your marijuana use was recreational. 
 
On 1 June 1984 you were notified that you were being processed for an administrative discharge by reason of misconduct due to drug abuse, and drug abuse rehabilitation failure.  You elected your rights to consult with counsel and to present your case to an administrative separation board (Adsep Board). 
 
On 14 July 1984 an Adsep Board convened in your case.  At the Adsep Board you were represented by 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 unanimous misconduct finding, the Adsep Board members recommended that you be separated from the naval service with an other than honorable (OTH) characterization of service.  Your separation physical and medical history on 18 August 1984 both noted no psychological/neurological issues or symptoms.  Ultimately, on 30 August 1984 you were discharged from the Navy with an OTH characterization of service and assigned an RE-4 reentry code.  On 7 July 1989 the Naval Discharge Review Board determined that your OTH discharge was proper as issued and that no change was warranted.   
 
The Board carefully weighed all potentially mitigating factors, including your contentions that included, but were not limited to:  (a) it was legal error and an injustice to take you to an administrative discharge board without first being given non-judicial punishment (NJP), a reprimand, or other administrative action to rehabilitate you, (b) you should have been given a chance to be rehabilitated, (c) clemency dictates that you should not be labeled forever as someone who was not honorable, (d) you should be given a second chance so you don’t have to live with the shame of an OTH, and (e) the “Wilkie Memo” factors should be considered in determining whether to grant relief and the Wilkie factors are right on point as to why you should be granted relief.  However, the Board found that your contentions and mitigating factors were insufficient to warrant upgrading your discharge or granting any other requested relief in your case.   
 
In accordance with the published guidance, the Board gave liberal and special consideration to your record of service, and your contentions about any traumatic or stressful events you experienced and their possible adverse impact on your service.  However, even under the liberal consideration standard, the Board concluded that there was no convincing evidence indicating that you suffered from any type of mental health condition while on active duty, or that any such mental health condition was related to or mitigated the misconduct that formed the basis of your discharge.  The Board further determined that your marijuana use was not due to a mental health condition or mental health-related symptoms, but instead was a likely continuation of the pre-service recreational drug use behavior you disclosed on your enlistment documents. 
 
The Board initially noted that under Navy policy, drug abuse requires mandatory administrative separation processing and, contrary to your contention, a prior NJP or other administrative measures are not required before initiating the separation process.  Additionally, absent a material error or injustice, the Board generally will not summarily upgrade a discharge solely for the purpose of facilitating benefits from the Department of Veteran Affairs, or enhancing educational or employment opportunities.  The Board noted that although one’s service is generally characterized at the time of discharge based on performance and conduct throughout the entire enlistment, the conduct or performance of duty reflected by only a single incident of misconduct may provide the underlying basis for discharge characterization.  The Board noted in your case that you did not test positive for THC just once, but three separate times over five-month period.  Moreover, the Board determined that characterization under OTH conditions is generally warranted for misconduct and is appropriate when the basis for separation is the commission of an act or acts constituting a significant departure from the conduct expected of a sailor.  In the end, the Board concluded that you received the correct discharge characterization, narrative reason for separation, and reentry code based on your circumstances and that such action was in accordance with all Department of the Navy directives and policy at the time of your discharge.   
 
Lastly, the Board did not believe that your record was otherwise so meritorious as to deserve a discharge upgrade and determined that sailors should receive no higher discharge characterization than is due.  The Board concluded that even though flawless service is not required for an honorable discharge, in your case an OTH was still appropriate.  The Board considered your post-service accomplishments, but ultimately concluded your drug-related misconduct still warranted an OTH characterization.  Accordingly, the Board determined that there was no impropriety or inequity in your discharge, and the Board found that your serious misconduct and your disregard for good order and discipline clearly merited your receipt of an OTH discharge. 
 
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” (Wilkie Memo).  The purpose of the Wilkie 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 Wilkie 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 Wilkie 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, including any arrests or convictions.  The Board carefully considered your post-service conduct, however, even in light of the Wilkie Memo and reviewing the record holistically, 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 reconsideration petition 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 the absence of new matters for reconsideration, the decision of the Board is final, and your only recourse would be to seek relief at no cost to the Board from a court of appropriate jurisdiction. 

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,