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.      
 
A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 9 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.   
 
You enlisted in the Marine Corps on 22 July 2002.  On 4 January 2003 during a random urinalysis, you tested positive for marijuana.  On 15 January 2003, you provided a sworn statement admitting to the use of marijuana and drinking alcohol underage.  On 3 February 2003, non-judicial punishment (NJP) was imposed on you for the wrongful use of a controlled substance and for violating a lawful order by underage drinking.  As punishment you received forfeitures of pay, restriction for 60 days, and were reduced in rank to the lowest enlisted paygrade (E-1).  You did not appeal your punishment.  The same day you were issued a “Page 11” counseling warning documenting your NJP.   
 
On 3 February 2003, your command notified you that you were being processed for an administrative discharge by reason of misconduct due to drug abuse.  You were afforded the opportunity but elected not to consult with counsel.  You also elected to waive your rights to request a hearing before an administrative discharge board and to include written rebuttal statements to your proposed separation.  The Staff Judge Advocate (SJA) for the separation authority reviewed your case and determined your separation was legally and factually sufficient.  On 13 March 2003, you were discharged from the Marine Corps with an Other Than Honorable (OTH) characterization of service.   
 
On 24 January 2019, the Naval Discharge Review Board (NDRB) determined that your discharge was proper and no change was warranted.  You argued to the NDRB that your sworn statement was obtained without the use of UCMJ Article 31b rights against self-incrimination.  The NDRB denied relief, in part, by determining that there was insufficient evidence in the record to support your contention that your sworn statement was obtained without being informed of your Article 31b rights.  The NDRB concluded that you did not produce any evidence to support your contention, and that your statements alone do not overcome the government's presumption of regularity.   
 
The Board carefully weighed all potentially mitigating factors, including your contentions that included, but were not limited to:  (a) that you were deprived of your UCMJ Article 31b rights during an investigation in violation of your due process rights, (b) your NJP and administrative separation relied upon an improperly obtained sworn statement, (c) that you were still in an initial entry level status at the time of your misconduct and the proper discharge characterization is uncharacterized, and (d) that your post-discharge conduct warrants a discharge upgrade.   
 
Similar to the NDRB, the Board determined that you did not produce convincing evidence to overcome the government’s presumption of regularity in this case.  The Board determined that the absence of an Article 31b waiver in your record does not mean that your rights against self-incrimination were never administered to you in the course of the investigation.  Further, the Board noted that your case involved a positive drug test result from a random urinalysis followed by a subsequent drug use admission.  The Board also concluded the positive drug test message and corresponding lab test results alone are sufficient evidence to convict someone of drug use at NJP.  The Board noted the record also shows:  (a) you did not appeal your NJP on due process grounds or for being unjust, and (b) you were notified of and waived your procedural rights in connection with your administrative separation.  The Board observed that the SJA determined your case to be legally and factually sufficient.  The Board also noted that there is no provision of federal law or in Navy/Marine Corps regulations that allows for a discharge to be automatically upgraded after a specified period of time.  The Board found that your contentions and mitigating factors were not sufficient to upgrade your discharge or grant any other relief in your case.     
 
The Board also observed that on the day of your NJP and administrative separation notification, you were at day 197 of your active duty service.  The Board concluded that any equitable arguments for an uncharacterized discharge because the actual misconduct occurred before you reached the 180-day mark were without merit.   
 
 
Additionally, the Board reviewed your application under the recent guidance provided in the Under Secretary of Defense’s memorandum dated 25 July 2018 entitled, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations” (USD Memo).  The purpose of the USD Memo is to ease the process for veterans seeking redress and assist Boards for Correction of Military/Naval Records (BCM/NRs) “in determining whether relief is warranted on the basis of equity, injustice, or clemency.”  The USD Memo noted that “increasing attention is being paid to…the circumstances under which citizens should be considered for second chances and the restoration of rights forfeited,” and that “BCM/NRs have the authority to upgrade discharges or correct military records to ensure fundamental fairness.”  The USD Memo sets clear standards and principles to guide BCM/NRs in application of their equitable relief authority, and further explains that boards shall consider a number of factors to determine whether to grant relief, such as positive or negative post-service conduct, including any arrests or convictions.  The Board carefully considered your post-service conduct; however, the Board still concluded that, given the totality of the circumstances, your request does not merit relief. 
 
After careful consideration of all matters presented, the Board determined that there was no impropriety or inequity 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 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,