DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 2012-19 Ref: Signature Date This is in reference to your application of 31 January 2019 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 2 April 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 originally enlisted in the Navy on 10 June 1992 and reenlisted for six (6) more years on 15 September 1995. On 20 February 1996, you were convicted of reckless driving in the Court, , . You were sentenced to 6 months in jail (suspended), fined $250 plus court costs, and ordered to spend two weekends in jail. On 24 February 1999, you went to non-judicial punishment (NJP) for the wrongful use of a controlled substance (cocaine). You did not appeal your NJP. On 1 March 1999, you were notified that you were being processed for an administrative discharge for misconduct due to drug abuse, misconduct due to a civil conviction, and misconduct due to the commission of a serious offense. You elected to waive your rights to consult with counsel, submit a statement, and present your case to an administrative separation board. Ultimately on 5 March 1999, you were discharged from the Navy for misconduct with an Other Than Honorable (OTH) characterization of service. The Board carefully weighed all potentially mitigating factors, including your contentions that included, but were not limited to: (a) you believe your discharge was inequitable because your drug use was one incident over the course of two enlistments with no other adverse actions in your service record up until that time, (b) that you have not had legal or judicial actions since leaving the Navy, (c) that while by the letter of the law, your punishment fit the crime, you do not believe your service history nor your character to that point was taken into consideration, (d) that even though it has been 20 years since this occurred, it is still something you live with regret and shame over, (e) it is your hope that the Board will find you have suffered enough at this point with the stigma of an OTH discharge, (f) that you truly wish to put this singular night of a youthfully poor decision-making in your life behind you, and (g) while you left the Navy with regret and shame, you have had a very successful life since the Navy because of the values you learned in the Navy: honor, courage, and commitment. However, the Board found that your contentions and mitigating factors were not sufficient to warrant relief in your case given the overall seriousness of your misconduct. The Board observed, contrary to your contentions, that in addition to your drug use NJP you did have other misconduct in your record. The Board noted that you were convicted of reckless driving in the same enlistment and had to serve jail time. The Board also determined that, although one’s service is generally characterized at the time of discharge based on performance and conduct throughout the entire enlistment, the conduct or performance of duty reflected by only a single incident of misconduct may provide the underlying basis for discharge characterization. Moreover, characterization under OTH conditions is generally warranted for misconduct. The Board concluded that your current characterization does not reflect an error or injustice that merits corrective action. 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 “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. However, even in light of the USD Memo, the Board still concluded that, given the totality of the circumstances, your request does not merit relief. 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, 4/19/2020