DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
TUR
Docket No: 5392-08
8 April 2009
This is in reference to your application for correction of your
naval record pursuant to the provisions of Title 10, United
States Code, Section 1552.
A three-member panel of the Board for Correction of Naval
Records, sitting in executive session, considered your
application.on 7 April 2009. 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, your naval record, and
applicable statutes, regulations, and policies.
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.
You enlisted in the Navy on 8 May 1986 at age 18 and began a
period of active duty on 13 August 1986. You served for nearly
two years without disciplinary incident, but on 6 April 1986 you
received nonjudicial punishment (NJP) for wrongful use of
marijuana. The punishment imposed was a $750 forfeiture of pay,
reduction to paygrade E-2, and restriction and extra duty for 45
days.
Subsequently, you were notified of pending administrative
Separation action by reason of misconduct due to drug abuse. On
1i April 1988 you waived your right to consult with legal counsel
and to present your case to an administrative discharge board
(ADB). On 25 April 1988 your commanding officer recommended an
other than honorable discharge by reason of misconduct due to
drug abuse. On 4 May 1988 the discharge authority approved this
recommendation, and on 3 June 1988 you were so discharyed.
The Board, in its review of your entire record and application,
carefully weighed all potentially mitigating factors, such as
your youth and desire to upgrade your discharge. It further
considered your assertion that you “made up” a story about using
drugs so that you could be discharged. Nevertheless, the Board
concluded these factors were not sufficient to warrant
recharacterization of your discharge because of the seriousness
of your drug related misconduct. Further, you were given an
opportunity to defend yourself, but waived your procedural right
to present your case to an ADB. Finally, it is well settled in
the law that if a Sailor procures a discharge by fraud, he or she
should not benefit from the fraud when it is discovered. As
such, if you lied to get out of the military, as you have stated,
no corrective action would be appropriate. Accordingly, your
application has been denied.
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 submission of new and material
evidence or other matter not previously 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,
\Sea
W. DEAN PF
Executive D tor
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