Docket No: 4869-21 
 
Dear Petitioner: 
 
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.     
 
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 3 September 2021.  The names and votes of the panel members 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 the 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, to include the 25 July 2018 guidance from the Under Secretary of Defense for Personnel and Readiness regarding equity, injustice or clemency determinations (Wilkie Memo). 
 
You enlisted in the Navy and began a period of active service on 21 February 2001.  On 21 February 2003, you received non-judicial punishment (NJP) for wrongful use of a controlled substance (marijuana).  Subsequently, you were notified of the initiation of administrative separation proceedings by reason of misconduct due to drug abuse, at which point, you waived your right to consult with counsel, and review of your case by an administrative discharge board (ADB).  On 6 March 2003, you received your second NJP.  On 10 March 2003, your commanding officer recommended your discharge from the naval service with an other than honorable (OTH) characterization of service by reason of misconduct due to drug abuse.  On 21 March 2003, the discharge authority concurred with the recommendation of your commanding officer and approved your discharge from naval service. On 24 March 2003, you were so discharged.  
 
The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in your case in accordance with the Wilkie Memo.  These included, but were not limited to, your desire to upgrade your character of service, adjustment of your grade to E-3, and contribution to post Vietnam era educational benefits.  You state that there was no willful and persistent misconduct because your discharge was unjustified.  The Board reviewed the correspondence from the Department of Veterans Affairs (DAV) that you included with your application.  Please note decisions reached by the Department of Veterans Affairs (DAV) to determine if former service members rate certain VA benefits do not affect previous discharge decisions made by the Navy.  The criteria used by the DVA in determining whether a former service member is eligible for benefits are different than that used by the Navy when determining a member’s discharge characterization.  The Board determined you failed to provide sufficient evidence to support your contentions.  The Board considered your misconduct, which resulted in your NJP for wrongful drug use.  The Board found no error or injustice in your naval record.  The Board concluded you failed to provide sufficient evidence to support adjustment to your current character of service, rank, and eligibility of education benefits.  Accordingly, given the totality of the circumstances, the Board determined that your request does not merit relief.   
 
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, 
 				                                                                                                        10/7/2021
Executive Director