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

Docket No: 10670-18 
Ref: Signature Date 

Dear

This is in reference to your application for correction of your naval record pursuant to Title 10, United States Code, Section 1552.  After careful and conscientious consideration of the entire record, the Board for Correction of Naval Records (Board) found the evidence submitted was 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 9 January 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, as well as applicable statutes, regulations, and policies. 

Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will 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 15 April 1996.  On 31 March 2000, you went to non-judicial punishment (NJP) for the wrongful use of a controlled substance.  Your command subsequently initiated administrative discharge proceedings by reason of misconduct due to drug abuse.  Unfortunately, the administrative separation notification and statement of awareness/election of rights documentation is not in your service record. However, the Board relied on a presumption of regularity to support the official actions of public officers.  In the absence of substantial evidence to rebut the presumption, to include evidence submitted by you, and given the narrative reason for separation and corresponding separation code as stated on your DD Form 214, the Board presumed that you were properly processed for separation and discharged from the Navy for misconduct due to drug abuse.  Ultimately, after waiving your right to have your case heard at an administrative separation board, on 13 April 2000 you were discharged from the Navy with an Other Than Honorable (OTH) characterization of service and assigned an “RE-4” reentry code.
 
The Board carefully weighed all potentially mitigating factors, including your contentions that you made a bad mistake which you take full responsibility for, that you have lived with this mistake for 18 years, that because of this mistake you have no benefits, that you served your country two days short of 4 years, and that you never had a problem in the Navy until your failed drug test.  However, the Board found that your contentions and mitigating factors were not sufficient to warrant upgrading your discharge or granting any other relief in your case given the overall seriousness of your drug-related misconduct and disregard for good order and discipline on active duty.  Additionally, absent a material error or injustice, the Board generally will not summarily upgrade a discharge solely for the purpose of facilitating U.S. Department of Veterans Affairs (VA) benefits or enhancing educational or employment opportunities.  Further, the Board observed that you were officially administratively separated and discharged for misconduct one day prior to your EAOS of 14 April 2000. However, the Board noted the record shows you were notified of and waived your procedural rights in connection with your administrative separation.  In doing so, you gave up your first and best opportunity to advocate for retention or a more favorable characterization of service.  The Board also determined that, 
although one’s service is generally characterized at the time of discharge based on performance 
and conduct throughout the entire enlistment, the conduct or performance of duty reflected by only a single incident of misconduct may provide the underlying basis for discharge characterization.  Moreover, characterization under OTH conditions is generally warranted for misconduct.  Accordingly, the Board concluded that there was no probable material error or injustice in your discharge, and the Board found that your serious misconduct merited your receipt of an OTH discharge.
 
The Board noted that the VA determines eligibility for post-service benefits, not the Board.  The VA conducts its own determination of eligibility based on service records and input from an applicant upon their request, and the Board suggests that you visit the VA website (http://www.va.gov) for additional assistance regarding a benefit determination review.
 
Additionally, the Board reviewed your application under the recent guidance provided in the Under Secretary of Defense’s memorandum dated 25 July 2018 entitled, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations” (USD Memo).  The purpose of the USD Memo is to ease the process for veterans seeking redress and assist Boards for Correction of Military/Naval Records “in determining whether relief is warranted on the basis of equity, injustice, or clemency.” The USD Memo noted that “increasing attention is being paid to…the circumstances under which citizens should be considered for second chances and the restoration of rights forfeited,” and that “BCM/NRs have the authority to upgrade discharges or correct military records to ensure fundamental fairness.” The USD Memo sets clear standards and principles to guide BCM/NRs in application of their equitable relief authority, and further explains that boards shall consider a number of factors to determine whether to grant relief.  

However, even in light of the USD Memo, the Board still concluded that, given the totality of the circumstances, your request does not merit relief.
 
It is regretted that the circumstances of your case are such that favorable action cannot be taken.  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,