DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 

Docket No: 8279-20 
Ref: Signature Date 

Dear Petitioner: 
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 2 July 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 on 20 October 1993. Your pre-enlistment physical examination on 23 October 1992 and self-reported medical history noted no neurologic or psychiatric conditions or symptoms. On 2 February 1994 you reported for duty on board the USS  (  ). 

On 3 November 1996 you commenced a period of unauthorized absence (UA) that terminated after twenty-five days on 28 November 1996. While in a UA status, you missed the movement of the USS    on 5 November 1996. 

On 13 December 1996 you received non-judicial punishment (NJP) for the wrongful use of marijuana and for your twenty-five day UA. You did not appeal your NJP. 

Following your NJP, you were notified of administrative separation proceedings by reason of misconduct due to drug abuse. Ultimately, on 17 June 1988 you were discharged from the Navy for misconduct due to drug abuse with an other than honorable (OTH) characterization of service and assigned an RE-4 reentry code.
 
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 contentions that: (a) you did not have any conduct problems stemming beyond this one instance of problematic conduct leading to your discharge; (b) the severity of marijuana usage has changed over time and is less severe today than it was decades ago; (c) you received numerous decorations and awards including the Good Conduct Medal; (d) post-service you have had no criminal convictions or misconduct; (e) you have made significant advancements in your civilian career; and (f) for twenty-three years you have borne the burden of the societal ignominy placed upon a service member with an OTH discharge. However, given the totality of the circumstances, the Board concluded your request does not merit relief. 

The Board did not believe that your record was otherwise so meritorious as to deserve a discharge upgrade and determined that Sailors should receive no higher discharge characterization than is due. The Board concluded that significant negative aspects of your conduct and/or performance greatly outweighed any positive aspects of your military record. The Board determined that characterization under OTH conditions is generally warranted for misconduct and is appropriate when the basis for separation is the commission of an act or acts constituting a significant departure from the conduct expected of a Sailor. The Board also determined that the record clearly reflected your misconduct was intentional and willful and indicated you were unfit for further service. Moreover, the Board noted that the evidence of record did not demonstrate that you were not mentally responsible for your conduct or that you should not otherwise be held accountable for your actions. 

Additionally, the Board noted that marijuana use in any form is still against Department of Defense regulations and not permitted for recreational use while serving in the military. The Board also noted, contrary to your contention, that your misconduct was not merely a single incident but comprised three separate and distinct serious offenses whether charged or not: (a) UA lasting over three weeks (Article 86 UCMJ), (b) missing ship’s movement (Article 87 UCMJ), and (c) wrongful drug use (Article 112a UCMJ). The Board carefully considered any matters submitted regarding your post-service conduct and accomplishments, however, even in light of the Wilkie Memo and reviewing the record holistically, the Board still concluded that given the totality of the circumstances your request does not merit relief. Accordingly, the Board determined that there was no impropriety or inequity in your discharge, and even under the liberal consideration standard, the Board concluded that your misconduct clearly merited your receipt of an OTH. 

The Board also noted that there is no provision of federal law or in Navy/Marine Corps regulations that allows for a discharge to be automatically upgraded after a specified number of months or years. Lastly, absent a material error or injustice, the Board generally will not summarily upgrade a discharge solely for the purpose of facilitating VA benefits, or enhancing educational or employment opportunities. In the end, the Board concluded that you received the correct discharge characterization and reentry code based on the totality of your circumstances, and that such action was in accordance with all Department of the Navy directives and policy at the time of your discharge. 

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, 
7/12/2021 

3