Docket No: 4461-19 
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 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 18 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 and applicable statutes, regulations and policies. 
 
You enlisted in the Navy and began a period of active duty on 6 April 1988.  On 9 March 1989, you received non-judicial punishment (NJP) for wrongful use of marijuana.  On 30 March 1989, you received your second NJP for wrongful use of cocaine.  Subsequently, you were notified of pending administrative action to separate you from the naval service because of misconduct due to commission of a serious offense and drug abuse.  You were advised of, and waived your right to consult with and be represented by military counsel.  You elected to represent yourself before an administrative discharge board (ADB).  An ADB was convened and determined that the preponderance of the evidence supported that you committed misconduct and recommended that you be separated from the Navy with an other than honorable (OTH) characterization of service. Your commanding officer (CO) concurred with the ADB’s findings and recommended administrative discharge from the naval service.  Prior to the separation authority’s decision, you received a drug dependency screening, and it was determined that you were not drug dependent.  The separation authority approved the recommendation and directed that you be separated from the naval service with an OTH characterization of service by reason of misconduct due to drug abuse.  On 4 August 1989, you were so discharged. 
 
The Board carefully weighed all potentially mitigating factors in your case, including your desire to upgrade your discharge.  The Board considered your youth and your contentions that you were treated unfairly due to testing twice within a 22-day period during a drug urinalysis; and that your second test should not have happened so quickly.  You further contend that you were never a disciplinary problem; you were young and easily influenced.  You also contend that you did not intend to violate the UCMJ a second time.  Additionally, you contend that your CO violated your “civil rights” by allowing you to defend yourself at your ADB with only a 12th grade education.   
 
After careful consideration, the Board concluded that these factors were insufficient to warrant relief in your case because of the seriousness of your repeated misconduct that resulted in two NJPs, which both included wrongful use of a controlled substance in light of the Navy’s drug policy.  Regarding your contention that you were treated unfairly because the tests were close in time, however, the record reflects that the positive urinalysis was for THC and the second was for cocaine.  Regarding your contention that your CO violated your “civil rights,” by allowing you to defend yourself at your ADB, the record reflects you were provided an opportunity to be represented by legal counsel, but waived this right, you elected to represent yourself.  Accordingly, under the totality of the circumstances, the Board discerned no probable material error or injustice in the discharge. 
 
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 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,