Docket No: 5281-20 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. A three-member panel of the Board, sitting in executive session, considered your application on 8 June 2021. 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. The Board carefully considered your request to remove your non-judicial punishment (NJP) and all associated documents. You also request to upgrade your characterization of service to Honorable, and to change your narrative reason for separation, separation code, and reentry code to reflect ‘Secretarial Authority’ as the basis for separation. The Board considered your contentions that your NJP and subsequent basis for your separation were defective as a matter of law. Specifically, you assert that you did not engage in the alleged misconduct, you did not receive a separation board prior to being separated with an Other Than Honorable (OTH) characterization of service, your characterization of service is not equitable in light of the totality of the facts and circumstances, including your service record and post service conduct. You also contend that Article 112a, Uniform Code of Military Justice (UCMJ) requires that the accused used a controlled substance and the use was wrongful. You argue that mushrooms are not listed anywhere as a controlled substance, therefore, you cannot be guilty of this offense because the charge does not state an offense, and there was no evidence that you tested positive for mushrooms or that you admitted to consuming Psilocin (a hallucinogenic alkaloid in mushrooms). You also argue that you admitted to authorities that you had consumed mushrooms, however, at no point did you admit to knowing that the mushrooms contained Psilocin or any other controlled substance. You claim that you were denied the opportunity to have a separation board consider your discharge action, and your request for legal counsel was denied and your command’s lawyer made erroneous representations that induced you to waive your administrative separation board. The Board noted that you received NJP for violation of article 112a, Uniform Code of Military Justice (UCMJ) for wrongful use or possession of a controlled substance (mushrooms), you appealed your NJP and your appeal was denied. The Board also noted that you acknowledged your Article 31, UCMJ Rights, and made a voluntary statement, during which, you admitted to having a rough time at your command, speaking with another sailor about mushrooms, going to a porn shop and purchasing a bag of mushroom containing three caps and approximately 15 stems for 7000 yen, and consuming all of the contents of the bag. The Board determined that your commanding officer (CO) had sufficient evidence to find you guilty at NJP and your CO acted within his discretionary authority pursuant to Article 15, the Manual for Courts-Marital (2000 ed.). The Board noted your Naval Discharge Review Board (NDRB) application and that the NDRB denied your application. The NDRB noted your CO’s statement regarding your admission to the use of hallucinogenic mushrooms and that you waived your right for an administrative board. The NDRB also noted that your chain of command recommended that you be separated with an OTH characterization of service for drug abuse according to the Navy Military Personnel Manual (MILPERSMAN) 1910-146. The Board determined that as the authorized separation authority, the Commander, Carrier Group FIVE acted within his discretionary authority by directing your discharge under OTH conditions by reason of misconduct due to drug abuse (use). Concerning your contention that mushrooms are not listed anywhere as a controlled substance, the Board noted that the NDRB remarked that through the command indoctrination and drug awareness program, you were responsible for knowing that certain types of mushrooms, lawful under Japanese law, had been determined by the Naval Criminal Investigation Service (NCIS) to contain Psilocin, a Schedule I controlled substance. The Board also noted that according to Title 21 U.S.C. Controlled Substance Act Section 812 and the United States Drug Enforcement Agency listed Psilocin as a Schedule I controlled substance. The Board opined that your purchase of mushrooms from a porn shop inferred that you knowingly purchased and consumed a controlled substance. Concerning your contentions that you were denied the opportunity for legal counsel and a separation board, the Board noted that you waived the separation board and found no evidence that you were denied counsel or otherwise manipulated to waive your administrative separation board and you provided none. Moreover, the Board relies on a presumption of regularity to support the official actions of public officers and, in the absence of substantial evidence to the contrary, will presume that they have properly discharged their official duties. Accordingly, the Board concluded that there is no probable material error, substantive inaccuracy, or injustice warranting corrective action. 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, 6/17/2021 Executive Director