Docket No: 6911-20
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 1 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 Navy and began a period of active service on 29 April 2013.  On 14 January 2016, you were notified that you were proposed for nonjudicial punishment (NJP) based upon a positive urinalysis for use of methamphetamine.  In connection with your notification of rights, you indicated that you elected your right to speak with qualified counsel.  You were also notified that you could either demand trial by court-martial or accept NJP.  You elected to accept NJP.  You were also notified that you could request a personal appearance before the commanding officer and you elected to waive a personal appearance.  You also had the right to list witnesses on your behalf, and you did not list any witnesses to speak on your behalf.  According to the summary of the office hours proceedings, it notes that you admitted to committing the offense.  It also notes that you were advised of your right to appeal the imposition of NJP.  The record reflects that you did not file an appeal.  You were then notified of the initiation of administrative separation processing, and your rights in connection with same, and you elected to have an administrative separation board.  Your administrative board was held on 16 November 2016.  The administrative board recommended your discharge by a vote of 2 to 1, and further recommended that you receive a general (under honorable conditions) characterization of service.  On 10 February 2017, you were so discharged.   
 
The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in your case including in accordance with the Wilkie Memo.  These included, but were not limited to, your desire to be reinstated in the Navy and your contention that you believe a material injustice occurred in your case when the officer that imposed your NJP refused to consider the entirety of testimony on your behalf and failed to recuse himself, and imposed punishment when it was clear he had a predetermined opinion of your guilt.  You further explained in your petition that you believed you would be able to put on relevant witnesses to speak about your good military character and duty performance. 
You submitted the statement of a Hospital Corpsman Second Class (HM2), who explained that he testified to your good character and performance, and that he testified that you made a mistake and that you wrongly ingested the prescription drug.  He also explained that after he testified to your good character and performance, the Battalion Commander determined that he had heard enough good character testimony.  Finally, the HM2 testified that there was not a judge advocate in the room during the officer hours hearing.  
 
The Board carefully considered your contentions and noted that in terms of the overall process that resulted in your receipt of NJP at an officer hours hearing, you were provided all of your rights prior to the hearing, including your right to refuse it entirely.  You elected the right to speak with counsel prior to deciding whether to accept NJP.  You indicated on your rights advisement that you did not have any witnesses that you intended to call at the hearing.  In fact, according to the rights advisement, you waived your personal appearance.  The records reflect that you ultimately received a personal appearance before your Battalion Commander despite your waiver of personal appearance.  At the office hours hearing you admitted that you committed the offense.  You also had witnesses available to speak to your good character.  Further, please be advised that an officer evaluating whether to impose NJP has discretion in determining whether witnesses will be considered cumulative.  Here, as you noted, the HM2 testified to your good character and performance.  Further, in his statement, the HM2 noted that there was not a judge advocate in the room during the office hours hearing.  There is no requirement that a judge advocate be present at an office hours hearing.  NJP is intended to be an informal, administrative disciplinary proceeding, and there is no requirement, or expectation, that legal counsel be present during such a hearing. 
 
Ultimately, based upon its review, the Board concluded the potentially mitigating factors you raised were insufficient to warrant relief.  As you indicated and the HM2 confirmed, the issue of whether you committed the offense was not at issue.  All that remained was your submission of evidence in mitigation, including good character and performance testimony.  In terms of allowing cumulative testimony concerning your good character and performance, as noted, it is up to the discretion of the officer determining whether and to what extent to review cumulative testimony.  Here, it appears the Battalion Commander made the determination that he had enough evidence of your good character and performance in order to make a decision.  Further, in the naval services, there is mandatory administrative processing for individuals that use illegal substances.  Thus, after your office hours at which you admitted the offense, which resulted in NJP, and which you did not appeal, you were provided the due process of an administrative board.  Ultimately, that board determined that you should be separated with a general (under honorable conditions) characterization of service.  Under the entirety of these circumstances, the Board found that your petition did not warrant relief.  
 
You are entitled to have the Board reconsider its decision upon the 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,