Docket No: 4326-20
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 initial 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 29 January 2021.  The names and votes of the panel members 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 the 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). 
 
You enlisted in the Navy on 23 July 2001.  On 23 February 2005 you were found guilty of both the use and distribution of methamphetamine (Meth) at a Summary Court-Martial (SCM).  During the SCM you provided a sworn statement where you admitted to using Meth in April, May, and July 2004.   
 
As part of pretrial negotiations with the Convening Authority (CA), on 5 February 2005 you signed a memorandum of understanding (MOU) with the CA where you expressly agreed in writing, among other things, to the following:  (a) you knowingly, intelligently, and voluntarily waived your right to a General Court-Martial (GCM) or Special Court-Martial (SPCM) and adjudicate your case at a SCM; (b) you agreed to plead guilty to the use of Meth; (c) you understood that two additional drug distribution charges would be adjudicated at the SCM; (d) you waived any administrative discharge board based on any act or omission reflected in the SCM Charge Sheet, and (e) you understood that any such administrative separation could be under other than honorable (OTH) conditions.  In Part III of the MOU, it expressly states: 
 
 has been advised by his civilian defense counsel,  and his detailed defense counsel , JAGC, USN throughout this agreement’s negotiation.  By signing this agreement, acknowledges (1) that he is satisfied with his counsel’s advice, (2) that he enters into this agreement of his own free will, and (3) that the Government has made no promises other than those expressly contained in this agreement.  acknowledges that he has had adequate opportunity to consult with, and has so consulted with his defense counsel, regarding the meaning and ramifications of the terms of this agreement.  (emphasis added). 
 
The MOU goes on further to state that you understood the agreement and agreed to be bound by its provisions.  
 
Following your SCM conviction, on 23 February 2005 you were notified of pending administrative separation action by reason of misconduct due to drug abuse.  In accordance with the terms of the MOU, you agreed to waive your right to have your case presented to an administrative separation board.  Ultimately, on 13 April 2005 you were discharged from the Navy with an OTH characterization of service.   
 
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 contentions that:  (a) the Board’s initial decision was largely dependent upon speculation and incongruent with the record; (b) the inference that your signature on the MOU somehow demonstrated your thorough understanding of the document or the sufficiency of your consultation with your attorneys is unsupported by the evidence, and such presumption based only upon the appearance of your signature on the MOU extends the presumption of administrative regularity in the conduct of government affairs well beyond its intended application; (c) the Board’s reliance on the presence of multiple attorneys named in the MOU to infer your sufficient understanding of your legal rights and consequences was an improper conclusion unsupported by the facts and evidence; (d) your counsels’ various failures rendered them ineffective in this matter; (e) at the time you executed the MOU all you knew was that failure to sign meant you would be deported; and (f) because the implications of agreeing to the MOU were never fully or properly explained you lacked a sufficient understanding to make an informed decision regarding his representation, and counsel was ineffective in the execution of their professional duties and responsibilities to you.  Based upon this review, however, the Board concluded these potentially mitigating factors were insufficient to warrant relief. 
 
The Board determined your contentions that the Board’s previous decision in your case was without merit.  The plain language in the MOU makes demonstrates that you knowingly and voluntarily signed the MOU with full and complete understanding of the terms and ramifications of the agreement.   
 
Lastly, even in light of the Wilkie Memo and reviewing the record holistically and given the totality of the circumstances, the Board determined that your request does not merit relief.  Accordingly, the Board determined that there was no impropriety or inequity in your discharge and concluded that your drug-related misconduct merited your receipt of an OTH discharge.   
 
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,