Docket No: 3780-19 
Ref: Signature Date 


This is in reference to your application of 27 March 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 14 May 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. 
Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to their understanding of the issues involved.  Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record. 

You enlisted in the Navy and began a period of active duty on 12 July 2000.  On 8 August 2001 you went to non-judicial punishment (NJP) for failing to obey a lawful order.  On 3 July 2002, you went to NJP for the wrongful use of a controlled substance (anabolic androgenic steroids).  You appealed your punishment, but higher authority denied your appeal. On 3 July 2002, you were notified that you were being processed for an administrative discharge by reason of misconduct due to drug abuse.  You elected your rights to consult with counsel, submit statements to the separation authority, and to present your case to an administrative separation board (Adsep Board). On 29 July 2002, you were evaluated and determined to be drug dependent and your command scheduled you to attend an intensive outpatient treatment program beginning on 30 September 2002. 

On 27 August 2002, an Adsep Board convened in your case.  Following the presentation of evidence and witness testimony, the Adsep Board members unanimously determined that you the committed misconduct as charged.  Subsequent to the unanimous misconduct finding, the Adsep Board members recommended that you be separated from the naval service with an other than honorable (OTH) characterization of service.  On 1 November 2002, you were discharged from the Navy with an OTH. 

The Board carefully weighed all potentially mitigating factors in your case, including your contentions that your conduct during your enlistment was honorable, and that on 20 March 2019 the Veteran’s Administration (VA) determined that your character of service was honorable for VA purposes.  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 VA eligibility determinations for health care, disability compensation, and other VA-administered benefits are for internal VA purposes only.  Such VA eligibility determinations and discharge classifications are not binding on the Department of the Navy and have no bearing on previous active duty service discharge characterizations.  Additionally, absent a material error or injustice, the Board generally will not summarily upgrade a discharge solely for the purpose of facilitating VA benefits, or enhancing educational or employment opportunities.  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, 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.