Docket No: 7568-20
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.     
 
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. 
 
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 for Correction of Naval Records, sitting in executive session, considered your application on 21 December 2020.  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. 
  
You enlisted in the Marine Corps and began a period of active duty on 18 October 2004.   Prior to your enlistment, on 23 September 2004, you signed the US Marine Corps policy on drug abuse.  On 18 January 2006, you were convicted of Wrongful Use of Marijuana at a Summary Court-Martial (SCM).  Subsequently, administrative separation action by reason of Misconduct – Drug Abuse, was initiated against you.  On 19 January 2006, you consulted counsel and waived an administrative board.  On 19 January 2006, your Commanding Officer recommended you be administratively separated with an Under Other than Honorable Conditions (OTH) discharge.   On 14 February 2006, the Staff Judge Advocate to the Separation Authority found the package legally sufficient and recommended you be administratively separated with an OTH discharge On 14 February 2006, the Separation Authority directed you be administratively separated with an OTH discharge.  On 15 February 2006, you were discharged with an OTH discharge.   
 
You requested an upgrade of your discharge to Honorable. In your application, you said the 15-year mark of your discharge is approaching and you desire to work for DoD or a government position.   You asserted your drug sample being lost is an example of possible contamination.  You also asserted that only two members who were supposed to be present during your court-martial were present.  You also asserted your trial was delayed, and then rushed, due to backlogged paperwork.  Finally, you asserted that your lawyer was deploying and left just as you were going to court-martial.  The Board concluded these factors and assertions were not sufficient to warrant a change to your discharge status, given your misconduct, which resulted in an SCM conviction for drug use.  The Board noted that you waived, in writing, the presence of your lawyer at trial.   The Board also noted that you waived your rights with regard to discharge proceedings.  By doing so, you waived your first, and best, opportunity to advocate for retention, or a more favorable characterization of discharge. 
 
In reviewing the circumstances of your separation and characterization of service, the Board considered the totality of the circumstances to determine whether relief is appropriate today in the interests of justice in accordance with guidance provided by the Under Secretary of Defense for Personnel and Readiness (Wilkie Memo of 25 July 2018).  Accordingly, the Board considered and acknowledged your positive contributions to the Marine Corps, the length of your active duty service to our nation, and your post-discharge achievements.  Even considering these potentially mitigating factors in accordance with the above referenced guidance, the Board did not find that relief was in the interest of justice.  The Board concluded that your OTH discharge characterization was issued without error or injustice, and that corrective action is not warranted. 
  
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,