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

Docket No: 7649-18                                     
Ref: Signature Date 

This letter is in reference to your application of 5 September 2018 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 23 October 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, relevant portions of your naval record, 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. 

Prior to your enlistment in July 1980, you admitted to possession and use of marijuana and counselled that subsequent involvement, or use could result in an administrative discharge.  You enlisted in the Marine Corps and began a period of active duty on 27 June 1981.  During the period from 27 August 1981 to 24 September 1982, you received three non-judicial punishments (NJP).  Your offenses included disobedience of a lawful order, failure to go to your appointed place of duty, and disobeying a lawful written order.  On 17 October 1984, you were convicted by summary court-martial (SCM) of wrongful use of marijuana.  Subsequently, you were notified of pending administrative action to separate you from the naval service by reason of misconduct due to drug abuse, at which time you elected your right to consult with legal counsel, but waived your right to present your case to an administrative discharge board (ADB).  Your commanding officer (CO) recommended that you be administratively separated from the naval service with an other than honorable (OTH) characterization of service.  A staff judge advocate determined that you were accorded all the rights to which you were entitled and the proceedings were sufficient in law and fact.  The discharge authority approved the CO’s recommendation and directed you receive an OTH discharge.  On 15 January 1985, you were so discharged. 

The Board carefully weighed all potentially mitigating factors in your case, including your desire to upgrade your discharge.  The Board considered your contentions that your discharge was unjust because you were denied a chance to refute the allegations.  You contend that the urinalysis testing criteria was crude to the point “tap” water would have had a positive result.  Further, you contend that had you known then, and could have afforded it, you would have retained legal counsel and taken your case to a court-martial. 

However, the Board concluded that these factors were insufficient to warrant relief in your case because of the seriousness of your repeated misconduct that resulted in three NJP’s and a SCM conviction, which included wrongful drug use.  The Board noted you were given an opportunity to defend yourself, but waived your right to present your case to an ADB.  In doing so, you gave up your opportunity to advocate for retention or a more favorable characterization of service when more evidence was obtainable. 
Regarding your contentions that you were denied a chance to refute the allegations, and that the testing criteria was crude, there is no evidence in your record and you did not present any to support your contentions.  Absent such evidence, the Board relied upon the presumption of regularity that attaches to all official records, and presumed that the officials acted in good faith, and in accordance with governing law and policy. Accordingly, under the totality of the circumstances, the Board, in its review, discerned no probable material error or injustice in your discharge. 

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, 


11/15/2019