Docket No: 11043-19
Ref: Signature Date                                                                                                        
  
Dear:  
 
This is in reference to your application for correction of your naval record pursuant to Section 1552 of Title 10, United States Code.  After careful and conscientious consideration of relevant portions of your naval record and your application, the Board for Correction of Naval Records (Board) found the evidence submitted 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 16 November 2020.  The names and votes of the panel members 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 the 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, to include the 25 July 2018 guidance from the Under Secretary of Defense for Personnel and Readiness regarding equity, injustice or clemency determinations (Wilkie Memo). 
  
You enlisted in the Navy and began a period of active duty on 11 October 1995.  On 15 August 1997, nonjudicial punishment (NJP) was imposed on you for Assault and you were issued a retention warning.  On 23 March 1998, NJP was imposed on you for Wrongful Use of a Controlled Substance.  Subsequently, administrative separation action by reason of Misconduct – Wrongful Use of a Controlled Substance was initiated.  On 30 March 1998, you waived counsel and an administrative board.  On 2 April 1998, your Commanding Officer (CO) recommended you be administratively separated with an Under Other than Honorable Conditions (OTH) discharge.  On 27 April 1998, the Separation Authority directed you be administratively separated with an OTH.  On 19 May 1998, you were discharged with an OTH.   
 
You requested an upgrade of your discharge to Honorable. You stated you were on liberty when you were given a marijuana joint and smoked it.  You asserted you didn’t know it was marijuana at the time, never did drugs before, and failed a urinalysis test.  You asserted that, at that time, the Navy had a zero tolerance policy and you had no other infractions.  You also asserted you look back on the incident and agree you made a bad judgment call.  Finally, you asserted you were young, had poor legal counsel, and were very proud at the time to serve.   
 
The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in your case in accordance with the Wilkie Memo.  These included, but were not limited to, your age at the time of the misconduct and your desire to upgrade your discharge.  Based upon this review, the Board concluded these potentially mitigating factors were insufficient to warrant relief.  Specifically, the Board determined that your misconduct, as evidenced by your two, outweighed these mitigating factors.  Accordingly, given the totality of the circumstances, the Board determined that your request does not merit relief. 
  
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,