DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 0096-19 Ref: Signature Date This is in reference to your application of 11 November 2018 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 8 January 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. Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to their 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 on 1 March 1982. On 2 September 1985, you received non-judicial punishment (NJP) for wrongful use of marijuana. As punishment, you were adjudged forfeiture of pay, restriction, and reduction in rank to the paygrade of E-3. On 24 June 1985, you had been frocked to E-5, however, frocking only authorizes you to wear the uniform and insignia of the higher grade, for all other purposes, including reduction in rank, you were an E-4 at the time of your NJP. Subsequently, you were notified of an administrative action to separate you from the naval service because of misconduct due to drug abuse. You were advised of, and waived, your procedural rights, including your right to consult with and be represented by military counsel, and your right to present your case to an administrative discharge board (ADB). Your commanding officer (CO) recommended that you be administratively discharged from the naval service with an other than honorable (OTH) characterization of service. The discharge authority approved the CO’s recommendation and directed that you be separated with an OTH characterization of service for misconduct due to drug abuse. On 1 October 1985, you were so discharged. The Board carefully weighed all potentially mitigating factors in your case, including your desire to upgrade your discharge, change your narrative reason for separation, correct your rate and rank to MM2/E-5 or MM3/E-4 and submission of supporting documentation on your behalf. The Board considered your contentions that (1) the punishment you received was much greater than your transgression warranted, and thus unfair considering you was an above-average Sailor who had received a commendation for outstanding service and advanced in rank to E5. You believe your OTH discharge was both an error and an injustice; (2) your command had no evidence of you using controlled substances prior to the urinalysis, the forced submission to such a search was neither voluntary, nor supported by probable cause; and (3) you have received little more than a traffic citation. You have worked your way through college, became a licensed attorney in both and and have worked as a prosecutor, private attorney and college instructor. The Board commends you on your post service accomplishments, however, concluded these factors were not sufficient to warrant relief in your case because of the seriousness of your misconduct that resulted in an NJP for the wrongful use of a controlled substance. You also waived your right to an ADB, and thereby forfeited your best opportunity to receive a better characterization of service. In regard to your contentions, despite a service member’s prior record of service, certain serious offenses, even though isolated, warrant separation from the Navy to maintain proper order and discipline. Wrongful use of a controlled substance is one such offense requiring, at a minimum, mandatory processing for an administrative separation, which usually results in an unfavorable characterization of discharge. The Board relied on a presumption of regularity to support the official actions of public officers and, in the absence of substantial evidence to the contrary, will presume that they have properly discharged their official duties. The Board found that your record and the evidence submitted was insufficient to establish the existence of probable material error or injustice. 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.