Docket No 5707-20 
  

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 applications on 24 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 applications, together with all material submitted in support thereof, relevant portions of your naval record and applicable statutes, regulations and policies, as well as the 28 November 2020 Advisory Opinion (AO) provided by the Manpower Management Division Military Personnel Law Branch.  The AO was provided to you on 7 December 2020, and you were given 30 days in which to submit a response.  Although you were afforded an opportunity to submit a rebuttal, you did not do so. 
 
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. 
 
The Board carefully considered your request to remove your 21 March 2019 nonjudicial punishment (NJP) for violation of the Uniform Code of Military Justice (UCMJ), Article 112a (wrongful use of a controlled substance).  The Board considered your contention that your Commanding Officer found that you did not knowingly consume a banned substance, but imposed NJP because you failed to seek medical attention for your back pain, which is not a violation of the UCMJ.   You also contend that the administrative separation board (ASB) members did not believe that you intentionally used a banned substance, and that Cannabidiol (CBD) oil was not a specifically banned substance at the time that you tested positive for tetrahydrocannabinol (THC).  The Board determined that your request to change the ASB’s finding of “no basis” is not under its purview because it is not an error in your official military personnel file. 
 
The Board substantially concurred with the AO that there is no evidence, other than your counsel’s letter and your contention that you were found guilty of not seeking medical attention for your back.  Moreover, your Commanding Officer considered your plea of “not guilty” and your purported ignorance of the presence of THC in the CBD oil you ingested, and still found you guilty by a preponderance of the evidence.   
 
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, 

6/29/2021
Executive Director