Docket No: 2503-19 
Ref: Signature Date 


This is in reference to your application of 22 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 23 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 enlisted in the Navy and began a period of active duty on 12 February 2001.  On 10 June 2002, you went to non-judicial punishment (NJP) for both the larceny and forgery of six personal checks.  You did not appeal your punishment.  On 11 June 2002, you were issued a Page 13 counseling warning documenting your UA and NJP.  The Page 13 expressly warned you that any further deficiencies in your performance or conduct may result in disciplinary action and administrative separation processing.  On 3 October 2002, you went to NJP for the wrongful use of a controlled substance (MDMA, aka “ecstasy”) on diverse occasions.  You appealed your punishment, but higher authority denied your appeal. 

On 4 October 2002, you were notified that you were being processed for an administrative action to separate you from the naval service for misconduct due to a pattern of misconduct, and misconduct due to drug abuse.  You elected your right to consult with counsel, to submit statements to the separation authority, and to present your case to an administrative separation board.  However, you later waived your right to an administrative separation board.  On 5 December 2002, you were discharged from the Navy with an other than honorable (OTH) characterization of service and assigned an “RE-4” reentry code.  On 4 February 2010, the Naval Discharge Review Board reviewed your case and determined that your discharge was equitable and proper and no change was warranted. 

The Board carefully weighed all potentially mitigating factors, including your contentions that included, but were not limited to:  (a) there was no evidence in your NJP for drug use and it was based on hearsay, (b) your branch’s policies have changed since your discharge and if current policies had been in place when you served you likely would not have been discharged, and (c) your command abused its authority when it discharged you and decided to give you a bad conduct discharge.  However, the Board found that your contentions and mitigating factors were insufficient to warrant upgrading your discharge or granting any other requested relief in your case.  The Board noted that the Military Rules of Evidence do not apply at NJP except for certain evidentiary privileges, and that hearsay evidence is permitted.  Moreover, the Board observed that the MILPERSMAN directs that administrative separation processing for drug use is mandatory, thus your command was required to process you for separation.  The Board concluded that your current characterization and reentry code 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, 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.