Docket No: 8178-19 
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 9 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, 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 13 July 2000.  On 19 September 2001, you received non-judicial punishment (NJP) for wrongful use of marijuana and theft of services.  Subsequently, administrative action to separate you from the naval service was initiated.  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 22 October 2001, you were discharged with an OTH characterization of service.  On 30 April 2014, you were informed of the Naval Discharge Review Board’s decision regarding your petition to have your discharge upgraded.  NDRB found your discharge was proper as issued and no change was warranted. 
 
You request that the Board upgrade your discharge.  You assert your discharge was inequitable because it was based on one isolated incident in 15 months of service with no other adverse action.  You claim you were not provided rehabilitation and treatment for your marijuana 
addiction.  Additionally, you cited Giles v.  Secretary of the Army as grounds for correction of your record. 
 
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 of drug use.  With respect to your contention that you only had one incident in 15 months, the Board noted that, although a Sailor’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 a single incident of misconduct may provide the basis for the characterization of service.  Moreover, generally, characterization under OTH conditions is warranted for misconduct.  With respect to your contention that you were drug-addicted but not offered any treatment, the Board noted that you provided no evidence to support your contentions.  Absent such evidence, the Board relied upon the presumption of regularity and presumed that the officials acted in good faith in accordance with governing law and policy.  Lastly, with respect to your contention that your discharge should be upgraded based on the Giles decision, the case is not similar.  Unlike that case, your urinalysis was not compelled to secure your discharge, but rather occurred while no other action was pending, and was the reason for your discharge.  Lastly, 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.