DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 1174-19 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, sitting in executive session, considered your application on 27 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, applicable statutes, regulations, and policies, as well as the 17 December 2019 advisory opinion (AO) from a Navy mental health professional, which was previously provided to you. You enlisted in the Navy on 5 January 1999 after acknowledging marijuana use on three occasions and receiving a waiver despite pre-service alcohol abuse and a misdemeanor for driving while intoxicated. On 9 April 2001, you were counseled for misconduct due to alcohol abuse as evidenced by an alcohol related incident in which you were apprehended by police for assault. On 15 June 2001, you received nonjudicial punishment for wrongful use of marijuana, assault consummated by a battery, and drunk/disorderly conduct. Subsequently, you were notified of pending administrative separation action by reason of misconduct due to drug abuse and commission of a serious offense. After you waived your procedural rights, your commanding officer, the discharge authority, directed discharge with a general, under honorable conditions (GEN), characterization of service by reason of misconduct due to commission of a serious offense. On 20 November 2001, you were so discharged. Your request for a change to your characterization of service was reviewed in consideration of the advocacy letter submitted by the mental health clinic that is currently treating you. Your request was fully and carefully considered by the Board in light of the Secretary of Defense's 3 September 2014 memorandum, “Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requested by Veterans Claiming Post Traumatic Stress Disorder,” the 25 August 2017 memorandum, “Clarifying Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modification of their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment,” and the 25 July 2018 memorandum, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations.” As part of the Board’s review, a qualified mental health professional reviewed your request and provided the Board with an AO on 17 December 2019. The AO noted you have submitted limited records in support of your claim and have not submitted a personal statement regarding your mental health condition. The AO concluded there is insufficient evidence of a mental health condition attributable to your military service that may have mitigated your misconduct. The AO was provided to you on 17 December 2019, and you were given 30 days in which to submit a response. When you did not respond within 30 days, your case was submitted to the Board for review. The Board carefully reviewed your application, weighed all potentially mitigating factors, and considered your contention that your positive urinalysis was in error. Specifically, you contend the seal on your urinalysis was “broken and resealed,” and you were never retested. The Board noted the urinalysis log entry annotated “seal broken, resealed” but concluded there was no evidence in the record that the positive test result was due to tampering or in error. The Board also noted you received NJP for the wrongful use of marijuana but all documentation in the record, including your spouse’s statement of 9 May 2001, addressed your alleged use of cocaine, and the lab results indicated you tested positive for cocaine use. The Board determined it was not material error which required correction or warranted relief. Additionally, the Board concurred with the AO and determined there is insufficient evidence to support a finding that a mental health condition contributed to or mitigated your misconduct. Lastly, the Board considered the numerous advocacy letters submitted on your behalf which detailed your post-service character and achievements. Unfortunately, after careful consideration of your contention and post-service record, the Board did not find evidence of an error or injustice that warrants upgrading your characterization of service. The Board, even applying liberal consideration, determined your misconduct warranted a GEN 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. Sincerely, 3/31/2020