Docket No:  8530-17

Dear 

This is in reference to your application for correction of your naval record pursuant to the provisions of Title 10 of the United States Code, Section 1552.  After careful and conscientious consideration of the entire record, the 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 Board found it in the interest of justice to waive the statute of limitations and consider your application on its merits.  Regarding your request for a personal appearance, the Board determined that a 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.  A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 23 January 2019.  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 Navy and began a period of active duty on 17 August 1977.  During the period from 19 to 31 July 1978, you received two nonjudicial punishments (NJP) for possession, sale, and transfer of drugs, and larceny.  On 3 August 1978, you were referred to the Counseling and Assistance Center (CAAC).  On 22 August 1978, however, your counseling was terminated due to your refusal to participate.  The counseling records indicate your primary concern was obtaining a discharge and that you had poor potential for further service.  Subsequently, administrative discharge action was initiated by reason of misconduct due to drug abuse.  After you waived all of your procedural rights, your case was forwarded to the separation authority for review.  Your commanding officer recommended that you be discharged with an other than honorable (OTH) characterization of service.
Following the initiation of your administrative discharge action, you received two additional NJPs on 12 September and 3 October 1978 for disrespect toward a commissioned officer, assault on a petty officer, larceny, provoking speech, two instances of insubordination, seven instances of failure to obey lawful orders, and seven instances of unauthorized absence.  The separation authority approved your separation from the Navy, and, on 18 October 1978, you were discharged with an OTH characterization of service.

The Board carefully weighed all potentially mitigating factors, such as your youth and impressionability, your desire to be accepted by your shipmates, and your desire to upgrade your discharge, as well as your contentions that you lacked understanding of your rights and did not appreciate the consequences of an unfavorable discharge, that drug and alcohol abuse on ship seemed tolerated, and that you turned to criminality to support your drug habit.  Additionally, the Board considered the Department of Veterans Affairs statement in support of your petition that, because you were addicted to drugs, termination of your counseling prior to 30 days was a direct violation of the Navy’s purported obligation to you.  The Board, however, concluded that these factors and assertions were not sufficient to warrant a change to your discharge given the seriousness of your repeated misconduct, which resulted in four NJPs.  With regard to your contentions, your counseling records indicate casual drug use rather than psychological dependence on drugs, and you signed a counseling sheet releasing the Navy from its obligation to provide 30 days of drug counseling before your separation.

Regrettably, the circumstances of your case are such that favorable action cannot be taken.  You are entitled to have the Board reconsider its decision upon submission of new matters.  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,


Executive Director