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

Docket No: 7163-19             
Ref: Signature Date 

This is in reference to your application of 5 July 2019 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 19 December 2019.  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 14 May 1996.  On 29 March 1997, you received non-judicial punishment (NJP) for larceny.  On 21 November 1997, you received NJP for wrongful use of a controlled substance. On 13 December 1997, you received a medical examination for purposes of separation, and subsequently went on a period of leave from 21 to 29 December 1997.  On 5 January 1998, you received a third NJP for wrongful use of a controlled substance.  You were discharged with an other than honorable characterization of service from the Navy on 15 January 1998, on the basis of a pattern of misconduct, and a reentry (RE) code of RE-4. 

You request an upgrade to your other than honorable discharge, and ask for an explanation of the basis of a pattern of misconduct.  You state in your petition to the Board that you were unjustly accused and that you ingested marijuana unknowingly after accepting a cigarette from a gentleman sitting at a table next to you while you were playing pool.  You state you were given a drug test, which you failed, and that when you tried to tell the truth you were not believed.  You would like your wife and children to enjoy the benefits the military has to offer. 

Your application also included a note from your mother which states you are recovering from a traumatic brain injury, and that she is helping you get your benefits in order.  The Board sent you a letter dated 18 October 2019, noting that you were seeking an upgrade to your discharge and that you raised the issue of a possible service-connected traumatic brain injury.  You were given the opportunity to provide treatment or counseling records pertaining to your traumatic brain injury.  You provided a response stating that your traumatic brain injury was recently encountered not while you were serving in the military. 

The Board, in its review of your entire record and application, carefully weighed all potentially mitigating factors, including your statement that you did not willfully ingest marijuana and that you stopped smoking once you realized that the cigarettes contained a controlled substance.  The Board also noted that you have a family and have undergone health challenges with your recent traumatic brain injury, and would like your family to have military benefits.  The Board noted that the basis for your separation was due to a pattern of misconduct, which is supported by the three NJPs reflected in your record.  With regard to your request for an upgrade, the Board was sympathetic to your current situation but found that your three instances of misconduct as reflected in your NJP for larceny and two NJPs for wrongful drug use support both the separation narrative of pattern of misconduct and the other than honorable characterization of service. The Board concluded that your current discharge does not reflect either an error or an injustice, and that corrective action is not warranted.  

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, 


1/5/2020