DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 7791-19 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 4 November 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, as well as applicable statutes, regulations, and policies. Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel would not materially add to its understanding of the issues involved. Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record. You enlisted in the Navy and began a period of active duty service on 29 September 1998. You completed your first enlistment honorably, and reenlisted for a second period of service beginning on 5 May 2002. On 28 July 2003, you received nonjudicial punishment (NJP) for wrongful use of a controlled substance (marijuana). On 4 August 2003, you were notified of administrative proceedings to separate you from the naval service on the basis of wrongful use of a controlled substance. You waived your procedural rights, including your right to request that your case be heard before an administrative discharge board (ADB). Your service record indicates that you had a positive urinalysis during a unit sweep on 7 July 2003, and a second positive urinalysis during a random urinalysis on 12 July 2003. Your commanding officer (CO) recommended that you receive an other than honorable (OTH) characterization of service and stated that you had proven a liability to your unit and to the Navy. Message Traffic dated 7 August 2003, reflects your OTH discharge and reentry (RE) code of RE-4. Your Certificate of Release or Discharge from Active Duty (DD Form 214) reflects your separation from the Navy on 12 August 2003, on the basis of misconduct due to drug abuse, with an OTH characterization of service and an RE-4 reenlistment code. You note in your request for correction that you served under a different legal name, , but have had a court-ordered name change since your separation from the military. You request a change to your OTH discharge, and state that you completed your first period of enlistment honorably. You also state that you tested positive for marijuana but that there was insufficient evidence to establish that the urine sample was positive for illegal substance. You state that you have never been convicted of a drug-related crime nor have you been required by law to attend any drug related counseling. You also definitively state that you do not use drugs. The Board, in its review of your entire record and application, carefully weighed all potentially mitigating factors in your case, including your contention that there was insufficient evidence to support an OTH discharge on the basis of drug abuse. The Board noted your assertion that you did not commit the misconduct of wrongful use of a controlled substance but also took into account that your record indicates that you waived your right to appear before an ADB, and you did not appeal your NJP. The Board considered a routine administrative message in your record from Navy Drug Lab to the USS dated 24 July 2003, which reflects resultant positive urinalysis samples as screened by immunoassay and confirmed by GC/MS. The Board determined that the information in your record supports processing on the basis of wrongful use of a controlled substance, and noted that you waived your right to contest the basis of separation. Accordingly, the Board found that your OTH characterization of service as reflected on your DD Form 214 was assigned without error or injustice. Given that you served your first period of service honorably prior to your reenlistment for a second period of active duty beginning on 5 May 2002, you may wish to petition the Board for the addition of a statement to your DD Form 214 that reflects continuous active duty service from 29 September 1998 through 4 May 2002. While such a statement does not upgrade your OTH characterization of service for your final period of enlistment, it would capture your honorable service for your first enlistment. Additionally, the Board noted that based on your court-ordered name change, you may wish to petition the Board for an updated DD Form 214 reflecting your current legal name of rather than your previous legal name of . It is regretted that the circumstances of your case are such that favorable action cannot be taken on your other than honorable characterization of service for your final period of enlistment. 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, 12/10/2019