Docket No: 6648-20
 
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 statue of limitations and consider your application on its merits.  A three-member panel of the Board, sitting in executive session, considered your application on 6 July 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, to include the 25 July 2018 guidance from the Under Secretary of Defense for Personnel or Readiness regarding equity, injustice or clemency determinations (Wilkie Memo).  
 
The Board carefully considered your request to vacate your 4 June 1986 Article 15 proceedings and to change your characterization of service from Other Than Honorable (OTH) to Honorable.  The Board considered your contentions that fundamental fairness and due process were not afforded to you before or during your Article 15 proceeding, you were not offered counsel or the opportunity to have witnesses present on your behalf.  You claim that you immediately and voluntarily admitted to smoking marijuana one time while attending your father’s funeral.  You also claim that you did not receive counseling or drug treatment, you served honorably during two previous enlistments, and that marijuana is now known for its stress-relieving medicinal value and has been decriminalized in numerous states.  
 
The Board noted that you were convicted by Special Court-Martial (SPCM) on 4 June 1986 for violating Article 112a, Uniform Code of Military Justice (UCMJ) for the wrongful used of a controlled substance—specifically—marijuana a schedule I controlled substance on 22 June 1985 and 20 September 1985.  You were sentenced to confinement for two months, forfeiture of $400.00 pay per month for two months, and reduction to pay grade E-2.  The Board also noted that your 31 March 1986 Substance Abuse Report indicated that you tested positive during two urinalysis test.  The Board found no evidence that you were not afforded the right to counsel or that your due process rights were violated and you provided none.  The Board noted, too, that you were subsequently processed for administrative separation according to the Navy Military Personnel Manual and approved to be discharged.  Although your record is incomplete, in that it does not contain appellate documentation, a review of your official military personnel file and Certificate of Release or Discharge from Active Duty (DD Form 214), reflect that your SPCM and the OTH characterization was subsequently approved at all levels of review and you were discharged on 15 July 1986.  The Board thus determined that your SPCM was conducted pursuant to the Manual for Courts-Marital (1968 ed.). 
 
The Board further noted that you were also convicted by SPCM on 2 March 1982 for wrongfully transferring, possessing, and selling marijuana and you were sentenced to forfeitures of pay.  The Board did not find evidence of an error or injustice nor did you submit any advocacy letters or documentation for consideration that warrants changing your OTH.  Accordingly, the Board concluded that there is no probable material error, substantive inaccuracy, or injustice that warrants granting clemency in the form of an upgraded characterization of service or corrective action. 
 
The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in your case according to the Wilkie Memo.  The Board concluded that these potentially mitigating factors were insufficient to warrant relief.  Specifically, the Board determined your misconduct, as evidenced by your SPCM, outweighed these mitigating factors.  Accordingly, given the totality of the circumstances, the Board determined that 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, 

7/21/21

Executive Director