DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 8570-19/ 2189-12 Ref: Signature Date This letter is in reference to your reconsideration request dated 3 September 2019. You previously petitioned the Board for Correction of Naval Records (Board) and were advised that your application had been disapproved. Your case was reconsidered in accordance with Board procedures that conform to Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004). After careful and conscientious consideration of the entire record, the 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 25 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. You enlisted in the Marine Corps and began a period of active duty on 26 April 2000. On 13 September 2000, you received nonjudicial punishment (NJP) for a period of unauthorized absence (UA). On 23 October 2000, you received a second NJP for wrongful use of marijuana, UA, and failure to obey a lawful order. You were notified of administrative separation proceedings on the basis of misconduct, and you waived your right to appear before an administrative separation board. On 1 January 2001, you were discharged from the Marine Corps on the basis of misconduct due to drug abuse, received an other than honorable characterization of service, and received a reentry (RE) code of RE-4B. You request an upgrade to your service characterization from other than honorable to honorable. You state that you were discharged for use of marijuana but you were seriously injured in an accident while on active duty and are in need of medical benefits. You contend that your discharge was based on minor infractions. You provide a letter of recommendation from a family friend and servicemember who supports you receiving Veterans Affairs (VA) benefits. The Board, in its review of your entire record and application, carefully weighed all potentially mitigating factors, including your contention that you suffered an accident while on active duty and that your infractions were relatively minor. With regard to your assertion that you were in an accident that now requires medical care, the Board noted that you do not appear to have been referred to a Medical Board/Physical Evaluation Board (PEB) while you are on active duty and your available service record does not establish your involvement in an accident prior to your processing for discharge on the basis of misconduct. You provide a letter from Orthopaedic Associates which states that on 1 January 2001, the date of your discharge from the Marine Corps, you were found unconscious on the roadside and diagnosed with severe hypothermia with frost bite injury to your right hand and that you suffered from residual chronic pain in your knees, hips and ankles due to hypothermia and cold exposure. The Board considered that the injuries referenced in the Orthopaedic Associates letter occurred the day you were discharged from active duty, and noted that you continued to have symptoms after the date of injury. The Board noted that SECNAVINST 1850.4 series states processing for administrative discharge for misconduct take precedence over processing for disability. Even in consideration of your assertion of suffering an accident while in the Marine Corps and taking note of the injuries from 1 January 2001, the Board found that your misconduct as evidenced by your two NJPs was an appropriate basis for your administrative discharge. The Board found that your other than honorable service characterization is supported by your periods of UA, wrongful use of a controlled substance, and failure to obey a lawful order, and that even in consideration of your injuries from 1 January 2001, your characterization of service is not unjust. The Board again determined that your record does not reflect an error or an injustice and no corrective action is warranted. With regard to receiving VA benefits, the VA determines benefit eligibility and characterization of service for VA purposes independently of the Department of the Navy. It is regretted that the circumstances of your reconsideration petition 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 the absence of new matters for reconsideration, the decision of the Board is final, and your only recourse would be to seek relief, at no cost to the Board, from a court of appropriate jurisdiction. 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, 1/10/2020