DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 4541-20 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 26 February 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). 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 Marine Corps Reserve (USMCR) Special Enlistment Program on 7 April 1997 and were honorably discharged at the completion of your initial recruit training and required active service on 16 August 1997. Upon your discharge, you were assigned to a reserve unit situated in your hometown of . The Navy-Marine Corps Reserve Center was located approximately 18 miles from your home address. On 8 January 2000 you failed the Marine Corps Physical Fitness Test. On 24 January 2002 the Navy Drug Lab in transmitted an unclassified message to your command identifying your urine sample as being one of two urinalysis samples testing positive for cocaine. Your positive urine sample was provided by you during the January 11-13, 2002 drill weekend. On 16 March 2002 during the regularly scheduled drill weekend, your command attempted to personally provide you with a notification of administrative separation (Adsep) proceedings by reason of drug abuse and a corresponding election of rights form. You were not in attendance that drill weekend so your command mailed the Adsep paperwork via U.S. Certified Mail to your home of record on 16 March 2002 (Certified Mail ). Based on an affidavit of service completed by your unit, you refused to acknowledge receipt of the Adsep notification package. Your failure to complete the Adsep notification package and return it to the command on a timely basis ultimately operated as a waiver of your rights in connection with the Adsep board. Accordingly, in October 2002 you were separated from the Marine Corps for drug abuse with an other than honorable characterization of service and assigned an RE-4B reentry code. In this regard, you were assigned the correct characterization and reentry code based on your factual situation. 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: (a) there were various errors in the discharge process that were previously overlooked and have thereby resulted in an arbitrary and capricious result that is contrary to law and policy, (b) neither you nor your parents ever received the Adsep notification package at your home address, (c) you returned to the USMCR and drilled without pay to restore your status, (d) your unit failed to follow Department of Defense and Marine Corps policy pertaining to due process, (e) the supplemental evidence submitted rebuts the presumption of regularity, (f) the lab information conveyed to the unit contained information that there were numerous errors and/or discrepancies with the urinalysis, (g) the urinalysis information provided lacks sufficient evidence to separate you, and (h) the legal review of the Adsep package was insufficient. However, based upon this review, the Board concluded that these potentially mitigating factors were insufficient to warrant any and all relief. First, the Board determined the new evidence you proffered does not rebut the presumption of regularity to support the official actions of public officers in this case. The Board concluded that providing declarations from you and your parents as well as claiming other assorted deficiencies does not meet your evidentiary burden. The evidence in the record clearly indicates that the command mailed your Adsep paperwork to you at your home of record address on 16 March 2002 by certified U.S. mail. The Board concluded that any argument to the contrary based on the lack of mailing receipts, white slips, notification documentation, or signed green cards in your personnel file is clearly without merit and not persuasive. Secondly, there is absolutely no evidence in the record that you were separated with a general (under honorable conditions) discharge (GEN) in June 2000. To the contrary, your drilling record indicates that following your June 10-12, 2000 drill weekend you were on orders from 23 June 2000 through 8 July 2000, and that you subsequently resumed regular monthly drilling in January 2001. Furthermore, in each of the years 1999, 2000, and 2001 you earned enough drill points for a satisfactory year towards retirement. Nothing in your drilling or service records substantiates your claim of a full year absence from drilling beginning in June/July 2000 and/or being officially discharged from the USMCR and reviving your service through some sub rosa agreement. At all relevant times you remained under contract with the USMCR and remained so until your discharge for drug abuse in October 2002. Thirdly, the Board found no irregularities with your urinalysis test results. The Board observed that the Navy Drug Lab Message (NDL Message) indicated two separate samples testing positive for cocaine. Each positive sample was contained in a separate batch of samples. Specifically, your sample was shipped in batch 7026 and the other positive sample was in batch 7024. The Board noted that each numbered batch contains up to twelve sealed sample bottles packaged up in their own separate box. The Board further noted that the NDL Message stated that any and all discrepancies noted were “non-testable” related discrepancies involving batch 7024 and not the batch containing your urine sample. Thus, the Board concluded your contentions that the drug test results were somehow tainted and unreliable was not persuasive. The Board unequivocally determined that the evidence of record indicated that you wrongfully used cocaine in violation of Department of the Navy policy and the Uniform Code of Military Justice. Finally, the Board did not believe that your record was otherwise so meritorious to deserve a discharge upgrade, and the Board determined that Marines should receive no higher discharge characterization than is due. The Board concluded that significant negative aspects of your conduct and/or performance greatly outweighed any positive aspects of your military record. Furthermore, the Board determined that the evidence of record did not demonstrate that you were not mentally responsible for your conduct or that you should not be held accountable for your actions. Based on foregoing, the Board concluded that you received the correct discharge characterization and reentry code based on your overall circumstances and that such characterization and reentry code were in accordance with all DoN directives and policy at the time of your discharge. The Board carefully considered any matters submitted regarding your post-service conduct and accomplishments, 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. 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, Executive Director