Docket No.7551-19
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 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 17 July 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 on 23 June 1998.  On 3 July 2002, you went to non-judicial punishment for the wrongful use of a controlled substance.  You received as punishment a reduction in rank to seaman (E-3), forfeitures of pay, and restriction for 45 days.  On the same day, your command initiated administrative discharge proceedings by reason of misconduct due to drug abuse.  On 8 July 2002, you elected in writing to waive your rights to consult with counsel, submit statements to the separation authority, and to request an administrative separation board.  Ultimately, on 17 July 2002, you were discharged from the Navy for misconduct with an other than honorable (OTH) characterization of service and assigned an “RE-4” reentry code.  On 29 January 2013, the Naval Discharge Review Board (NDRB) determined that your discharge was proper and that no change was warranted. 
 
The Board carefully weighed all potentially mitigating factors, along with your contentions that included, but were not limited to:  (a) that you were always in good standing with the military other than this one incident, (b) since your discharge you have proven that you can stay out of trouble and away from drugs by maintaining steady employment where urine testing is mandatory and by successfully attending college, (c) you completed your first four-year term enlistment and made a mistake by failing one urine test when you were going through a divorce, and (d) that you had traveled to , from  for your NDRB personal appearance hearing but were never seen on your scheduled day.  However, the Board found that your contentions and mitigating factors were not sufficient to warrant upgrading your discharge or granting any other relief in your case given the overall seriousness of your drug-related misconduct and disregard for good order and discipline on active duty.  Further, the Board 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.  The Board also noted the Navy Drug Lab message indicated the level of THC in your system was 87 ng/mL, which was well above the Navy cutoff level of 15 ng/mL and suggests that you were more than just a one-time user of marijuana.  Additionally, absent a material error or injustice, the Board generally will not summarily upgrade a discharge solely for the purpose of facilitating U.S. Department of Veterans Affairs (VA) benefits or enhancing educational or employment opportunities.  The Board also determined that, although one’s service is generally characterized at the time of discharge based on performance and conduct throughout the entire enlistment, the conduct or performance of duty reflected by only one incident of misconduct may provide the underlying basis for discharge characterization.  Moreover, characterization under OTH conditions is generally warranted for misconduct.  Accordingly, the Board concluded that there was no error or injustice in your discharge, and the Board found that your 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 post-service arrests and/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,                                                                              

9/15/2020


Executive Director