Docket No: 3838-19 
Ref: Signature Date 

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. 

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 11 June 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, as well as applicable statutes, regulations, and policies. 

Regarding your request for a personal appearance, the Board determined a personal appearance with or without counsel will not materially add to their understanding of the issues involved.  Therefore, the Board determined a personal appearance was not necessary and considered your case based on the evidence of record. 

You enlisted in the Navy on 15 November 1985, after being determined eligible for continued enlistment despite drug use while in the Navy Deferred Enlistment Program (DEP).  On 27 January 1986, you received nonjudicial punishment (NJP) for disobeying an order/regulation by drinking when underage.  On 9 March 1987, you were counseled for underage drinking.  On 4 June 1987, you received a second NJP for using disrespectful language toward a petty officer. On 1 December 1988, you received a third NJP for wrongful use of cocaine after freely and voluntarily consenting to a urinalysis after you had been arrested by civilian police for possession of cocaine.  On 6 December 1988, you were evaluated by medical, determined to not be drug or alcohol dependent, and recommended for administrative separation.  Subsequently, you were notified of pending administrative separation action by reason of misconduct due to drug abuse and a pattern of misconduct.  After waiving your procedural rights, your commanding officer recommended you be discharged with an other than honorable (OTH) characterization of service due to misconduct.  The discharge authority approved this recommendation and directed discharge with an OTH characterization of service by reason of misconduct due to drug abuse.  On 30 December 1988, you received an OTH discharge. 

The Board carefully reviewed your application, weighed all potentially mitigating factors, and considered your contention that you were unjustly discharged.  Specifically, the Board considered your contention that you were dealing with a severe case of depression, separation anxiety, and the pressures of serving in the military. You further contend your wife was pregnant, but you were not able to support your family, and, when you were evicted from your apartment, you spoke to your division chief but received no help from him or your division officer.  TheBoard considered your contention that you began to “slowly spiral out of control because I did not know who or where to turn after that” and began to “drink heavily trying to drown my pain and sorrows” and even contemplated suicide.  The Board also considered your contention that you “cried out to the civilian authorities and was arrested” and only then did your division decide to act, but, instead of helping you, they gave you a urinalysis.  At NJP, you contend you tried to plead your case but quickly learned that in “military justice you are guilty until proven innocent.”  Additionally, the Board considered the letters regardingyour criminal history and the letters you provided in October and November 2019 which explained that you had not been able to obtain your treatment records which documented your inpatient stays from March 1990 to October 2000.  The Board specifically noted your use of drugs while in DEP and, even applying liberal consideration, determined there was insufficient evidence in the record to attribute your misconduct and drug abuse to a mental health condition.  In the end, the Board determined there was insufficient evidence to establish an error or injustice that warrants an upgrade to your 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. 

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