Docket No: 6863-19
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 you did not file your application in a timely manner, the statute of limitation was waived in accordance with the 25 August 2017 guidance from the Office of the Under Secretary of Defense for Personnel and Readiness (Kurta Memo).  A three-member panel of the Board, sitting in executive session, considered your application on 11 December 2020.  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 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 Kurta Memo, the 3 September 2014 guidance from the Secretary of Defense regarding discharge upgrade requests by Veterans claiming post-traumatic stress disorder (PTSD) (Hagel Memo), and 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 Marine Corps on 19 January 1993.  On 12 January 1994, a medical officer at the Substance Abuse Counseling Center diagnosed you as a drug abuser.  On 11 February 1994, you received nonjudicial punishment (NJP) for wrongful use of cocaine.  On 7 March 1994, you were counseled regarding your illegal drug involvement and cocaine usage and chose not to make a statement.  Subsequently, you were notified of pending administrative separation action by reason of misconduct due to drug abuse and, without consulting counsel, elected your right to an administrative discharge board (ADB).  Your commanding officer (CO) recommended you be discharged with an other than honorable (OTH) characterization of service due to misconduct.  In an undated document, you waived your right to hearing before an ADB, acknowledging that you had been recommended for an other than honorable (OTH) discharge, and indicating your desire to submit written material.  On 17 October 1994, you submitted a statement in your defense adamantly denying the use of cocaine.  You further stated that you waived your ADB “due to the fact that my command keeps harassing me every day” and you “do not get treated right.”  After the staff judge advocate determined the discharge package was sufficient in law and fact, the discharge authority approved this recommendation and directed discharge with an OTH characterization of service by reason of misconduct due to drug abuse.  On 4 November 1994, you were discharged.   
 
The Board carefully reviewed your application, weighed all potentially mitigating factors, and considered your contention that you are entitled to a discharge upgrade under the Wilkie Memo because there are multiple instances where you deny using cocaine.  Specifically, the Board considered your denial of cocaine use prior to service, your denial of use reflected in your medical record, your dispute in writing when notified of the positive test, and your sworn affidavit that you did not use cocaine but believe your test was the result of a false positive due to prescribed medication or human error.   
 
The Board further considered your contention that you are entitled to relief under the Wilkie memo because there are aggravating and mitigating facts.  Specifically, the Board considered your contention you were “brutally beaten” by your sergeant and also considered your CO’s 26 October 1994 memorandum regarding the event.  The Board further considered your in-service statement that the command continually harassed you and treated you so bad that you were “forced to waive” your right to an ADB because you “couldn’t take it anymore.”   
 
Further, the Board considered your contention that your request for an upgrade should be granted because there are instances of false positive tests in the armed forces, and you never had an opportunity to refute the findings of your positive test.  Specifically, the Board considered your contention that “drug tests are not full proof” but are conducted and analyzed by humans who make mistakes.  Further, the Board considered your contention that false positives are “more common than you may think” and your supporting excerpt.  The Board also considered your contention the Marine Corps “never bothered to allow a chance at a second test or an alternative means to resolve the false positive” and you could not afford a civilian attorney so you were denied a retest of the sample.   
 
Lastly, the Board considered your contention that you have been unfairly burdened by the OTH discharge and the advocacy letter from your friend describing you as an “honorable and trustworthy person.”   
 
Even under the liberal consideration standard, the Board discerned no procedural defect, impropriety, or inequity in your discharge and determined your misconduct warranted an OTH character of service.  The Board concluded the record does not support your contention that your prescribed medications resulted in a false positive and further noted you did not provide supporting documentation or a list of the medications.  The Board concluded there was insufficient evidence to support your contention you were harassed and treated so poorly that you ultimately waived your requested hearing before the ADB.  The Board, applying liberal consideration, determined there was insufficient evidence to overcome the government’s presumption of regularity that the testing procedures and results were accurate and without error.   
 
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 desire to upgrade your discharge and contentions discussed above.  Based upon this review, the Board concluded these potentially mitigating factors were insufficient to warrant relief.  Specifically, the Board determined your misconduct 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,