Dear : 
 
This letter 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 that 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, a 30 August 2019 Advisory Opinion (AO) from a qualified mental health provider, your response thereto, and 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 Marine Corps on 26 July 2000.  In your pre-enlistment paperwork, you signed the standard statement of understanding regarding the USMC policy concerning the illegal use of drugs.  You also admitted pre-service marijuana use multiple times.  On 5 October 2001, you went to non-judicial punishment (NJP) for three specifications of failing to obey a lawful order related to an underage drinking incident.  On 26 October 2001, you were formally counseled regarding underage drinking and being a passenger in a vehicle involved in an alcohol-related hit and run accident.   
 
On 1 August 2002, a Navy drug lab message indicated that your urine tested positive for both marijuana and MDMA (aka “ecstasy”).  On 19 August 2002, you were notified that you were being processed for an administrative discharge by reason of misconduct due to drug abuse.  You consulted with counsel and elected in writing to waive your right to present your case to an administrative discharge board (ADB).  On 27 August 2002, you expressly refused a Medical Officer’s Evaluation (MOE) to determine drug dependency and eligibility for Veterans Administration (VA) addiction treatment in conjunction with your discharge.  On 27 September 2002, you went to non-judicial punishment (NJP) for the wrongful use of controlled substances.  Ultimately, on 19 November 2002, you were discharged from the Marine Corps with an other than honorable (OTH) characterization of service.  On 29 February 2016, the Naval Discharge Review Board reviewed your application and determined that your discharge for misconduct was proper as issued and that no change was warranted. 
 
Your contention that you suffered from a mental health condition was fully and carefully considered by the Board in light of the Secretary of Defense’s 3 September 2014 memorandum, “Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requested by Veterans Claiming Post Traumatic Stress Disorder,” the 25 August 2017 memorandum, “Clarifying Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modification of their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment,” and the 25 July 2018 memorandum, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations.” 
 
As part of the review process, a qualified military mental health provider (MHP), reviewed your contentions and the available records, and provided the Board with an AO.  The MHP observed that you have a current bipolar disorder diagnosis, but determined that there is insufficient evidence to attribute your current mental health diagnosis to your military service.  The MHP concluded by opining that there is insufficient evidence to attribute your misconduct to a service-connected mental health condition. 
 
The Board carefully weighed all potentially mitigating factors, such as your contentions that included, but were not limited to:  (a) that your OTH upgrade was promised to you by your chain of command upon signing of discharge papers, (b) that you were convinced by your chain of command to sign discharge papers and your OTH would be upgraded to honorable, (c) that you were denied an upgrade because somehow your medical records indicating self-medication were misplaced, and (d) your records were sent with a diagnosis of a psychological condition.  Unfortunately, the Board concluded these factors and contentions were insufficient to warrant upgrading your discharge characterization or granting any other relief. 
 
In accordance with the published guidance, the Board gave liberal and special consideration to your record of service, and your contentions about any traumatic or stressful events you experienced, and their possible adverse impact on your service.  However, even under the liberal consideration standard, the Board concluded that there was no medical evidence indicating that you suffered from any type of mental health condition while on active duty, or that any such 
mental health condition was related to or mitigated the misconduct that formed the basis of your discharge.  Additionally, the Board noted that, there is no evidence in the record, and you provided none, that you were promised an OTH upgrade upon signing your discharge papers.  Moreover, the Board observed that the official administrative separation notification and the election of rights form you signed are standard USMC forms and make absolutely no mention of an automatic upgrade.  Additionally, there is no provision of federal law or in Navy/Marine Corps regulations that allows for an unfavorable discharge to be upgraded based solely on the passage of time.  Accordingly, the Board determined that there was no material error or injustice in your discharge, and even under the liberal consideration standard, the Board found that your misconduct supported your characterization of service. 
 
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.