Docket No: 7782-19 
Ref: Signature Date           
 
 

Dear : 
 
This is in reference to your application of 31 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 23 March 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, and applicable statutes, regulations, and policies. 
 
You enlisted in the Navy and began a period of active duty on 21 August 1985.  On 16 May 1986, you began a period of unauthorized absence (UA) that continued until 7 June 1986.  On 16 June 1986, you were convicted by summary court-martial (SCM) for violating Article 86 (UA) and Article 112a (wrongful use of controlled substances, marijuana and cocaine) of the Uniform Code of Military Justice (UCMJ).  You were sentenced to bread and water for three days, confinement with hard labor for 22 days, forfeiture of pay for two months, and reduction in rank to E-1.  On 9 July 1986, you were convicted by SCM for violating Article 112a (wrongful use of marijuana) of the UCMJ.  You were sentenced to confinement with hard labor for 30 days and forfeiture of pay for one month.  On 19 August 1986, you began another period of UA that continued until you were apprehended by civilian authorities on 28 August 1986.  On 24 September 1986, you received non-judicial punishment (NJP) for UA and wrongful use of cocaine.  On 29 August 1986, an administrative action to separate you from the naval service was initiated for misconduct due to drug abuse.  After being afforded all of your procedural rights, you waived them, and your case was forwarded to the separation authority for review.  Your commanding officer recommended that you receive an under other than honorable (OTH) characterization of service and the separation authority approved your separation from the Navy.  On 6 October 1986, you were so discharged. 
 
You request that the Board upgrade your discharge; however, you did not specify the characterization of service you are seeking.  You assert that you should be able to claim veteran status.  In support of your petition, you attached two statements.  In the first statement, you claim you tested positive for marijuana after liberty, and while restricted to ship tested positive for another drug.  You dispute the second test.  You were told that if you completed a 30-day recovery program you could stay in the Navy.  You missed your wife and twins, and you did not have a drug problem, so you refused rehabilitation.  In the second statement, you claim it has been 33 years since your discharge and it still haunts you.  You wrote, in part:  “My crime is that I went to  for MTV Spring Break in the 80s and yes, I tried some things.  I did not know the actual life consequences at the time.  I’m embarrassed when I should be able to be proud.  I can’t even get Veteran’s preference for a job.” 
 
The Board carefully weighed all potentially mitigating factors in your case, including your record of service and contentions and concluded these factors were not sufficient to warrant a change to your discharge given your misconduct that resulted in a NJP and two courts-martial.  The Board noted that your statements contain conflicting contentions.  In the first, you claim a drug test was incorrect, in the second you admit to drug use.  The Board noted that you provided no evidence to support your contention of an incorrect drug test result.  Absent such evidence, the Board relied upon the presumption of regularity and presumed that the officials acted in accordance with governing law and in good faith.  Further, there is no provision of law or in Navy regulations that allows for recharacterization of service due solely to the passage of time. 
 
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.