Docket No: 10314-19
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 for Correction of Naval Records, sitting in executive session, considered your application on 14 October 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, 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 issue(s) 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 10 January 1984.  During the period from 11 February 1985 to 28 December 1987, you received five non-judicial punishments (NJP) for wrongful use of marijuana, unauthorized absence, disobeying a lawful order, failure to obey a regulation, making a false official statement, possession of hashish, drunk and disorderly conduct, and wrongful use of cocaine.  Subsequently, you were notified of pending administrative separation action by reason of misconduct due to drug abuse.  After electing to waive your rights, your commanding officer (CO) recommended discharge under other than honorable (OTH) conditions by reason of misconduct due to drug abuse.  The discharge authority approved this recommendation and directed separation under other than honorable conditions by reason of misconduct.  On 7 January 1988, you were discharged.  
 
The Board carefully weighed all potentially mitigating factors, such as your desire to upgrade your discharge and contentions that you completed a four-year enlistment and you were recalled back to your command while on terminal leave due to testing positive on a urinalysis prior to going on terminal leave.  In this regard, the Board concluded that your violation of the Navy’s “Zero Tolerance” drug policy outweighed your desire to upgrade your discharge.  
 
In regard to your contention that you completed a four-year enlistment, the Board noted that a Sailor’s service is characterized at the time of discharge based on performance during that period of enlistment.  In regard to your contentions that you were discharged three days prior to completion of required active service due to violating the Navy’s “Zero Tolerance” drug policy and were recalled back to your command while on terminal leave due to testing positive on a urinalysis, the Board noted that even though you were on terminal leave, you were officially still on active duty and subject to the Uniformed Code of Military Justice.  The Board also noted that the record shows that you were notified of, and waived your right to present your case to an administrative board (ADB).  In doing so, you gave up your first and best opportunity to advocate for retention, assistance, or a more favorable characterization of service. 
 
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 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,