Docket No: 10374-19 
Ref: Signature Date 
          

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 13 February 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, as well as applicable statutes, regulations, and policies. 
 
Regarding your request for a personal appearance, the Board determined a personal appearance with or without counsel will not materially add to its understanding of the issues involved.  Therefore, the Board determined a personal appearance was not necessary and considered your case based on the evidence of record. 
 
You enlisted in the Navy and began a period of active duty on 19 October 2004.  On 23 December 2005, you received nonjudicial punishment (NJP) for larceny and a false/unauthorized pass offense.  On 7 February 2006, you received a second NJP for a five-hour unauthorized absence and violation of a lawful order.  On 26 October 2006, your record reflects you received a third NJP but does not contain the NJP documentation.  Your record is incomplete in that it does not contain all the documents pertaining to your administrative discharge but, based on the separation authority’s letter of 13 February 2007 and your Certificate of Release or Discharge from Active Duty (DD Form 214), it appears that after being afforded all of your procedural rights, the separation authority directed that you be discharged from the naval service with an other than honorable (OTH) characterization of service by reason of misconduct due to drug abuse.  You were discharged with an OTH characterization of service on 15 February 2007. 
 
The Board carefully reviewed your application, weighed all potentially mitigating factors, and considered your contention that you received an OTH characterization after a failed urine test.  You specifically contend that you were “never given a second test within 24 hours” nor were you sent to treatment or administered NJP because the “duty station [you were] at was trying to get [you] out due to [your] sexuality.”  You further contend that you were not given the “proper release from the military” and were discharged in absentia despite the fact you were “not missing” and were “still staying in military housing.”  Lastly, you contend you have not received any help for the “health or mental health issues” you were experiencing “before I left the duty station.”  Unfortunately, after careful consideration of your contentions, the Board did not find evidence of an error or injustice that warrants upgrading your characterization of service.  The Board noted there is no requirement to provide a second urine test, send one to treatment, or administer NJP.  Further, the Board did not note any evidence, nor did you provide any, regarding your contention that you were separated due to your sexuality.  Lastly, noting you completed pre-separation counseling during which you did not indicate any concerns, the Board did not find any evidence of an error or injustice in your release from the military.  Even under the liberal consideration standard, the Board found your misconduct supported an OTH 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 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.