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 4 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 that a personal appearance by you 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 this case based on the evidence of record. 
 
You enlisted in the Navy on 18 October 1999.  On 28 June 2000, you went to non-judicial punishment (NJP) for the larceny of two cartons of cigarettes from the Navy Exchange.  You did not appeal your punishment.  A portion of your punishment was suspended for six months.  On 28 June 2000, you were also issued a “Page 13” (Page 13) counseling warning documenting your NJP for larceny.  The Page 13 expressly warned you that any further deficiencies in your performance and/or conduct may result in disciplinary action and administrative separation 
processing.  On 27 July 2000, you went to NJP for:  (a) the wrongful use of a controlled substance, (b) unauthorized absence, and (c) breaking restriction two separate times.  Prior to the imposition of NJP, your commanding officer vacated the suspended portion of your June 2000 NJP due to continued misconduct.  You did not appeal your punishment. 
 
On 27 July 2000, you were notified that you were being processed for an administrative discharge by reason of misconduct due to a pattern of misconduct and misconduct due to drug abuse.  You elected in writing to expressly waive your rights to consult with counsel, submit statements to the separation authority, and to present your case to an administrative separation board.  In the interim prior to your discharge, you commenced a period of unauthorized absence on 4 August 2000.  Ultimately, on 16 August 2000, you were discharged from the Navy for misconduct due to a pattern of misconduct with an other than honorable (OTH) characterization of service and assigned an “RE-4” reentry code. 
 
The Board carefully weighed all potentially mitigating factors, including your contentions that included, but were not limited to:  (a) the discharge was unfair at the time, (b) the discharge has fulfilled its purpose, (c) it would be inequitable to not review the discharge, and (d) the discharge is procedurally defective.  However, the Board found that your contentions and mitigating factors were without merit and insufficient to warrant upgrading your discharge or granting any other requested relief in your case. 
 
The Board noted that you met the MILPERSMAN administrative separation requirements for misconduct due to a pattern of misconduct by having two NJPs combined with violating a Page 13 warning prior to processing.  The Board also observed that the MILPERSMAN directs that administrative separation processing for drug use is mandatory, thus your command did not abuse its discretion to process you for separation.  The Board also noted the record shows you were notified of and waived your procedural rights in connection with your administrative separation.  In doing so, you gave up your first and best opportunity to advocate for retention or a more favorable characterization of service.  Lastly, 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.  In the end, the Board concluded that you received the correct discharge characterization, reentry code, and narrative reason for separation based on the seriousness of your misconduct, and that such discharge action was in accordance with all Department of the Navy directives and policy at the time of your discharge.  Accordingly, the Board determined that there was no error or injustice in your discharge, and the Board concluded that your pattern of serious misconduct merited your receipt of an OTH discharge. 
 
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. 
 
Sincerely,                                                                              7/9/2020