Docket No: 7857-19 
Ref: Signature Date 
          

Dear : 
 
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 13 February 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. 
 
Regarding your request for a personal appearance, the Board determined a personal appearance with or without counsel will not materially add to its understanding of the issues involved.  Therefore, the Board determined a personal appearance was not necessary and considered your case based on the evidence of record. 
 
You enlisted in the Marine Corps and began a period of active duty on 12 May 2008.  On 7 May 2010, in accordance with your plea of guilty, you were convicted by summary court-martial for wrongful use of marijuana (after testing by urinalysis at approximately six times higher than the DoD cutoff for such testing).  Subsequently, you were notified of pending administrative action to separate you from the naval service by reason of misconduct due to drug abuse.  After you consulted counsel and waived all your procedural rights, your commanding officer (CO) recommended that you be separated with an other than honorable (OTH) characterization of service by reason of misconduct due to drug abuse.  You CO also specifically 
noted that you admitted your wrongdoing and that you made a mistake.  After the staff judge advocate determined the separation package was sufficient in law and fact, the discharge authority concurred with the CO’s recommendation and directed an OTH discharge by reason of misconduct.  On 3 August 2010, you were so discharged. 
 
The Board carefully reviewed your application, weighed all potentially mitigating factors, and considered your contention that you never consumed marijuana.  Specifically, you contend that the weekend before you tested positive, your siblings visited, and you “recall a moment in which I was sitting in a car with them while they were consuming/smoking marijuana but I was smoking a cigarette”.  You contend that the marijuana detected in your urine must have been from the “second hand smoke.”  Although you recognize you should not have “jeopardized [your] career goals of becoming a lifer with the Marine Corps” by being in the car while they were smoking marijuana, you now contend that you did not smoke marijuana.  You further contend that you tried to explain your situation to your superiors “but [your] fear of going to the brig for years or being kicked out of the military clouded [your] chain of thought and [you] hastily made the decision to plead guilty.”  You also contend that by pleading guilty and serving time in the brig, you thought you would be spared discharge from the military.  Additionally, you contend that you completed an alcohol and drug course in hopes the military would “overlook [your] case and keep [you] in the Marine Corps”.  Unfortunately, after careful consideration of your contentions, the Board did not find evidence of an error or injustice that warrants upgrading your characterization of service.  The Board, noting your remorse and regret, and even applying liberal consideration, nevertheless determined that your misconduct supports 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.