DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORD
ARLINGTON, VA 22204-2490 

Docket No: 9867-19
Ref: Signature Date 

Dear :
 
This is in reference to your application of 7 October 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 21 April 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. 

You enlisted in the Navy and began a period of active duty on 8 February 1982. On 14 July 1984, you received non-judicial punishment (NJP) for wrongful use of a controlled substance and was awarded reduction in rate, forfeiture of pay, and extra duties for 14 days.  On 28 August 1984, you told the Chaplain that you realized you were homosexual after entering the service, engaged in homosexual conduct while on active duty, and wanted to tell your Commanding Officer and be discharged.  On 27 September 1984, you were evaluated by a medical officer who determined that you were not drug dependent.  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 5 October 1984, you were discharged with an OTH characterization of service, a separation code “HKK,” a reentry code “RE-4,” and a narrative reason for separation “misconduct – drug abuse.” 

You request that the Board upgrade your discharge to honorable.  You assert that after your first positive drug test you were not punished and all of your subsequent drug tests were negative.  You claim you were punished because of your homosexuality.  In support of your petition, you attached the Department of Veterans Affairs (DVA) letter dated 19 March 2019 informing you that your service was determined honorable for VA purposes. 

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 abuse.  The Board noted that you claim you did not reveal your sexual preference until after you tested positive for drugs, and that your narrative reason for separation was misconduct (drug abuse) not homosexual conduct.  Additionally, 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 accordance with governing law/policy and in good faith.  Further, the Board notes that the Board of Veterans’ Appeals upgraded your discharge status to “honorable.” The VA only has the authority to recharacterize your service for purposes of determining eligibility for VA benefits.  The VA does not have any authority to change your naval record.
 
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. 

Sincerely, 





















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-X-20. MEMBER REQUESTS COPY 6 BE 
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AFFAIRS YES 
VIRGINIA BEACH, VA 23451 
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30. MEMBER REQUESTS COPY 4 
29. DATES OF TIME LOST DURING THIS PERIOD 
INITIALS 
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