Docket No: 298-21 Dear This is in reference to your application for correction of your naval record pursuant to Section 1552 of Title 10, United States Code. After careful and conscientious consideration of relevant portions of your naval record and your application, the Board for Correction of Naval Records (Board) found the evidence submitted insufficient to establish the existence of probable material error or injustice. Consequently, your application has been denied. A three-member panel of the Board, sitting in executive session, considered your application on 28 September 2021. 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, as well as the 23 March 2021 advisory opinion (AO) furnished by the Headquarters, Marine Corps Military Personnel Law Branch (JPL). The AO was provided to you on 30 March 2021, and you were given 30 days in which to submit a response. Although you were afforded an opportunity to submit a rebuttal, you did not do so. 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. The Board carefully considered your request to remove your 1 October 2019 unit punishment book (UPB)/non-judicial punishment (NJP), 29 January 2020 UPB/NJP, and 1 October 2019 and 12 February 2020 Administrative Remarks (page 11) entries. You also request to remove your fitness report for the reporting period 13 August 2019 to 1 October 2019. The Board considered your contentions that your NJP for a controlled substance was later determined to be a false positive and although your subsequent test were negative, your command still pursued NJP. You claim that you were hospitalized for seizure like symptoms and your blood work taken a Naval Hospital detected a small amount of a controlled substance in your system. You also contend that your administrative separation board determined that there was no basis of a pattern of misconduct and recommended your retention in the Marine Corps. As evidence, you furnished medical documents. The Board, however, substantially concurred with the AO. In this regard, the Board noted that you tested positive for Tetrahydrocannabinol (THC) the active ingredient in marijuana, on 12 August 2019. Your medical documents from Naval Hospital indicated your initial positive results and 13 August 2019 negative results. However, your negative results are based on a cutoff rate of 50 ng/mL and indicate the presence of cannabinoids (CBD). The Board also noted that on 1 October 2019, you received NJP for violating Article 92 (failure to obey an order or regulation) and Article 121 (Larceny and wrongful appropriation), Uniform Code of Military Justice (UCMJ) for wrongfully using a controlled substance and for taking another Marine’s vehicle from 19 July to 31 July 2019 without the Marine’s permission. You were awarded reduction to E-4, forfeiture of pay and restriction. On 29 January 2020, you received NJP for violating Article 86 (unauthorized absence) and Article 92 (Failure to obey an order or regulation) for failing to report for work, for not checking in to restriction on time, lack of respect to higher authority, disobedience, and violating your restriction by operating a personal vehicle. You were awarded reduction to E-3, and restriction. The Board noted, too, that you acknowledged your Article 31, UCMJ rights, you elected to accept NJP, you were afforded the opportunity to consult with a military lawyer, to appeal your commanding officer’s (CO’s) finding of guilt at NJP and you elected not to. The Board found no evidence that your NJPs were conduct contrary to the Manual for Courts-Martial (MCM) (2006 ed.). The Board determined that your CO had sufficient evidence to support his findings that you were guilty at your NJPs. On 5 November 2020, your administrative separation board unanimously found that the preponderance of evidence does not prove any of the acts or omissions alleged and recommended that you be retained in the Marine Corps. The Board noted that during your administrative separation board testimony, you acknowledged your actions and took full responsibility. The Board determined that your CO was not bound by the findings of your administrative separation board and their determination does not negate the fact that your NJPs are valid. Concerning your request to remove your fitness report for the reporting period 13 August 2019 to 1 October 2019, the Board determined that you have not exhausted your administrative remedies. The Performance Evaluation Review Board (PERB) is the initial action agency for fitness report appeals, therefore, you must submit your request to the PERB according to the Marine Corps Performance Evaluation Appeals Manual. Concerning your request to remove your 1 October 2019 and 12 February 2019 page 11 entries. The Board noted that you were issued page 11 entries pursuant to the Marine Corps Separation and Retirement Manual (MARCORSEPMAN) and the Marine Corps Enlisted Promotions Manual (MARCORPROMAN) documenting your NJP and notifying you that you are not recommended for promotion to the next higher grade due to your NJP. The Board also noted that you were properly counseled and determined that the contested entries were written and issued according to regulations. Specifically, the entries provided written notification concerning your deficiencies, specific recommendations for corrective action, where to seek assistance, the consequences for failure complete your enlistment contract with an honorable characterization of service, and it afforded you the opportunity to submit a rebuttal. Moreover, your CO signed the entries, and he/she determined that your misconduct was a matter essential to record, as it was his/her right to do. The Board relies 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 your evidence insufficient to overcome this presumption. Accordingly, the Board concluded that there is no probable material error, substantive inaccuracy, or injustice warranting corrective action. You are entitled to have the Board reconsider its decision upon 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, 10/17/2021 Executive Director