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

Docket No. 103-19 
Ref: Signature Date 

Dear 

This is in reference to your application for correction of your naval record pursuant to the provisions of 10 USC 1552.  After careful and conscientious consideration of the entire record, the Board found the evidence submitted was insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied. 

A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 30 May 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.
  
A review of your record shows you entered active duty with the Marine Corps in December 2013.  On  February 2017, you admitted to recreationally breathing nitrous oxide and assisting another servicemember in his attempt to secure lysergic acid diethylamide (LSD).  In the meantime, you were being processed through the Disability Evaluation System for bilateral superior glenoid labrum lesions to your shoulders.  A medical board referred you to the Physical Evaluation Board (PEB) in July 2017.  On  July 2017, you were notified of administrative separation processing for your admitted drug abuse.  Subsequently, as part of your dual processing, the PEB found you unfit for continued naval service for your right shoulder and rated your unfitting condition at 30%.  However, you were recommended for administrative separation for misconduct by your command on  October 2017 and approved for separation for drug abuse by the Commanding General on  December 2017.  In accordance with Secretary of the Navy dual processing policy in disability cases, the Commanding General concluded your misconduct should take precedence over your disability processing and requested the PEB terminate your disability case on  December 2017.  You were discharged for drug abuse on  January 2018 with a General characterization of service.
 
The Board carefully considered your arguments that you deserve to have your narrative reason for separation change to disability.  You assert that you are unable to secure employment and utilize your Department of Veterans Affairs GI Bill benefits due to your discharge.  

Unfortunately, the Board disagreed with your rationale for relief. First, the Board concluded no error exists in your record.  You were properly discharged for drug abuse based on your admission to criminal investigators that you wrongfully inhaled nitrous oxide.  A General officer considered your disability case and concluded that you should be discharged for your misconduct instead of being afforded disability benefits.  The Board found this deliberative process and decision to be in compliance with existing dual processing disability policy.  Based on these findings, the Board determined that you were not eligible for military disability benefits, a disability discharge, or disability retirement.  Second, the Board concluded no injustice exists in your case.  You argue that you are being improperly punished through the deprivation of benefits.  The Board found this argument unconvincing based on their conclusion that you were properly discharged for your misconduct.  The fact your misconduct and misconduct discharge led to the loss of post-discharge benefits from the VA and difficulties with securing employment was determined to be a natural consequence of committing drug related misconduct.  Further, the Board noted you are receiving substantial tax-free VA compensation for your disability conditions.  In their opinion, this mitigates any arguments of unfairness you raised in your application.  Accordingly, the Board determined insufficient evidence of error or injustice exists to warrant a change to your record. 

It is regretted that the circumstances of your case are such that favorable action cannot be taken at this time. You are entitled to have the Board reconsider its decision upon the submission of new and material evidence.  New evidence is evidence not previously 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, 


6/4/2019