DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490

Docket No: 7149-19 
Ref: Signature date 

This letter 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 30 January 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. 

You enlisted in the Navy and began a period of active duty on 12 January 1998.  On 13 January 1998, you received an administrative remarks (Page 13) entry which explained that you were being retained in the naval service despite your failure to disclose your pre-service drug use (“Under the influence of a controled [sic] substance, 6/97, Dismissed; Amphetamines 50x, 1/97 – 6/97”).  You were also warned that any further deficiencies might result in administrative separation processing.  You had enlisted with a guaranteed assignment to Aircrew Rescue Swim. However, due to your undisclosed prior drug use, you were no longer eligible for this guaranteed assignment.  On 13 February 1998, you received a Page 13 entry notifying you that your drug waiver for “50X amphetamine use” had been disapproved and you had lost your assignment to Aircrew Rescue Swim.  From 19 November 1999 to 11 January 2000, you were in an unauthorized absence (UA) status.  On 24 January 2000, you were convicted by summary court-martial for the extended UA, as well as wrongful use of cocaine.  Your record indicates that you “elected to voluntarily, knowingly, and intelligently waive [your] right to confer with counsel and was not represented by counsel.” Your record is incomplete in that it does not contain the documents pertaining to your administrative discharge but, based on your Certificate of Release or Discharge from Active Duty (DD Form 214), it appears that after being afforded all of your procedural rights, the separation authority directed your discharge with an other than honorable (OTH) characterization of service by reason of misconduct due to drug abuse.  You were discharged with an OTH characterization of service on 18 August 2000 and assigned an RE-4 (not recommended for reenlistment) reentry code. 

The Board carefully reviewed your application, weighed all potentially mitigating factors, and considered your contention that your characterization of service should be honorable.  Specifically, the Board considered your contention that the quality of your service “generally met the standard of acceptable conduct and performance for military personnel” or is “otherwise meritorious.”  Alternatively, you contend your service should “be at least general because of [your] overall quality of service” because you “received positive reviews from [your] supervisors,” were “always on time in [your] uniform, serviced with pride,” had a “great attitude,” and “earned the trust of [your] colleagues and supervisors.”  The Board also considered your contention that you were twice nominated for the Golden Anchor Award and were “studying to be a petty officer,” 

Additionally, the Board considered your post-service accomplishments such as attainment of your associate’s degree, employment since discharge, support for your family, and your volunteer duties as a camera operator for the City of .  The Board also considered your contention that 19 years have passed since your misconduct and you have been free from arrests, criminal charges, or convictions and have not abused alcohol or drugs.  Further, the Board considered your contentions that “there were also matters beyond [your] control that impaired [your] capability to serve or to avoid reprimand leading to the discharge” and you were “quite immature and felt homesick” after your grandfather passed away without you saying goodbye to him.
 
Further, the Board considered your contention that if the current discharge procedures had been in effect at the time of your discharge, “there is substantial doubt that [you] would have been issued the discharge [you were] given.” You contend that you were being separated due to cocaine use and you were “not formally counseled concerning these deficiencies nor afforded an opportunity to overcome these deficiencies through rehabilitation.” You also contend that “these deficiencies are permitted to be separated as under honorable conditions in the current policy.” “Because there is an opportunity to remain in the military despite such one-time drug use,” you contend you “would not have gone AWOL for 30 days” but would have “gotten treatment and remained in the military.”
 
The Board also considered your contention that your drug use was “an isolated one-time incident and not based on a pattern of behavior that constituted a significant departure from conduct expected of service members.” You further contend that you were not afforded an opportunity to request an administrative board and were “not being separated in lieu of trial by court-martial” so you “should have been given, at worse, a discharge of under honorable conditions.”  You also contend that prior to separation, you were not provided with written notice “of certain rights that would have changed the nature and character of [your] discharge,” not provided written notice of the basis of the proposed separation, and not informed of your rights to consult counsel and submit statements in your defense. 

Unfortunately, after careful consideration of your above contentions, the Board did not find evidence of an error or injustice that warrants upgrading your characterization of service. In considering your contentions that you were not afforded an opportunity to consult counsel or elect an administrative board, provided written notice of your rights, and not allowed to submit statements in your defense, the Board noted the government retains a presumption of regularity in the proper conduct of business and you did not submit any documentation to overcome that presumption.  Additionally, the Board noted that you did not submit any post-service documentation or advocacy letters in support of your contentions.  The Board, noting your pre­service “50X amphetamine use,” concluded your in-service drug use was “not an isolated one­time incident,” and ultimately determined that, based on your drug-related misconduct, you were assigned an appropriate characterization of service and reentry code.  Even under the liberal consideration standard, the Board found your misconduct warranted an OTH 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. 

Sincerely, 

3/2/2020