Docket No: 5035-19 
Ref: Signature Date 

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 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, 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 3 October 1995.  On 5 November 1996, you went to non-judicial punishment (NJP) for disobeying a lawful written order, dereliction of duty, the wrongful use of a controlled substance (marijuana), and indecent acts with another sailor. 

On 5 November 1996, your command provided you notice that you were being administratively processed for separation from the Navy by reason of misconduct due to the commission of serious offenses, misconduct due to drug abuse, and homosexual conduct.  You waived your rights to consult with counsel and to request an administrative separation board.  On 12 December 1996, the Bureau of Naval Personnel approved and directed your separation for misconduct due to the commission of a serious offense and assigned you with an RE-4 reentry code.  On 10 January 1997, you were discharged from the Navy with an Other Than Honorable (OTH) characterization of service. 

The Don’t Ask, Don’t Tell Repeal Act of 2010, and the Under Secretary of Defense Memo of 20 September 2011 (Correction of Military Records Following Repeal of Section 654 of Title 10, United State Code), both set forth the Department of the Navy’s current policies, standards, and procedures for correction of military records following the “don’t ask, don’t tell” (DADT) repeal.  The current policy now provides service Discharge Review Boards with the guidance to 
grant requests to change the characterization of service to “honorable” or “general (under honorable conditions),” narrative reason for discharge to “secretarial authority,” separation code to “JFF,” and reentry code to “RE-1J” when the original discharge was based solely on DADT or a similar policy in place prior to enactment of it, and there are no aggravating factors in the record, such as misconduct. 

The Board carefully weighed all potentially mitigating factors, such as your contention that during the separation process you were being accused of using illegal drugs but your drug test revealed negative results. Unfortunately, the Board determined your mitigating factors and contentions were not sufficient to warrant upgrading your discharge, changing your narrative reason for separation, or granting any other relief in your case. 

The Board concluded that DADT policy guidance did not apply to the circumstances surrounding your discharge.  Your command processed you for three separate basis:  misconduct due to the commission of a serious offense, homosexual conduct, and misconduct due to drug abuse.  The Board observed, contrary to your contentions, that the Drug and Alcohol Abuse Report prepared following your self-referral of drug use noted that you admitted to the use of marijuana but denied having a problem.  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.  Accordingly, the Board determined that your separation and all codes assigned were in accordance with all Department of the Navy directives and policy at the time of your 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.  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. 



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