DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No:3103-18 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 11 July 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, as well as applicable statutes, regulations, and policies. You enlisted in the Navy on 21 November 1996. On 11 April 2000, you went to non-judicial punishment (NJP) for disorderly conduct while you were in As punishment, you were verbally reprimanded, received a reduction in rank, forfeitures of pay, and 30 days’ restriction. On 12 April 2000, you received a “Page 13” counseling warning for your disorderly conduct. The Page 13 advised you to refrain from further acts of misconduct, and that any further deficiencies in your performance and/or conduct may result in disciplinary action and in processing for administrative separation. Less than two months later, on 1 June 2000, you received NJP for the wrongful use of a controlled substance (marijuana). As punishment you were further reduced in pay grade and received forfeitures of pay, and 45 days of restriction and extra duties. On 2 June 2000, you were notified that you were being processed for an administrative separation from the naval service for misconduct due to a pattern of misconduct, and misconduct due to drug abuse. You elected to waive your rights to consult with counsel, submit a statement, and your right to present your case to an administrative separation board (ADB). Your commanding officer recommended that you separated with an other than honorable (OTH) characterization of service. The separation authority agreed and, on 14 September 2000, you were discharged from the Navy with an OTH. The Board carefully weighed all potentially mitigating factors in your case, including your contentions that despite the mistakes you made as a young man, that you did fulfil your four years of active military service, that you received multiple awards during your service to the country, and that you are proud to have served your country in the Navy. However, the Board found that your contentions and mitigating factors were insufficient to warrant relief in your case, given the overall seriousness of your pattern of misconduct and drug use on active duty. The Board noted that, contrary to your contentions, that you did not fulfill or complete your four-year enlistment because you were clearly discharged prior to your end of active obligated service (EAOS). The Board also noted that the record shows that 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. Accordingly, the Board determined that, under the totality of the circumstances, there was no probable material error or injustice in your discharge. The Board also reviewed your application under the recent guidance provided in the Under Secretary of Defense’s memorandum of 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, such as positive or negative post-service conduct, including any arrests or convictions. However, even in light of the USD Memo, the Board nevertheless concluded that, given the totality of the circumstances and your drug-related misconduct following an unambiguous counseling warning, 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.