DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
2 NAVY ANNEX
WASHINGTON DC 20370-5100
RDZ:ecbh
Docket No. 06557-i1
9 November 2011
This is in reference to your application for correction of your naval
record pursuant to the provisions of title 10 of the 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 1
November 2011. 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 that the evidence submitted was insufficient to
establish the existence of probable material error or injustice.
You enlisted in the Marine Corps at age 20 on 11 April 1995 for a
term of four years. During your initial military training you were
fully briefed on the Marine Corps’ zero tolerance drug policy the
violation of which would subject a Marine to disciplinary proceedings
and or administrative separation with an other than honorable
discharge (OTH). On 27 January 1997 you admitted to Marine Corps
officials that you hadusedmarijuana. You were taken to nonjudicial
punishment (NIP) four days later and again admitted to using
marijuana. Having been found guilty you were awarded forfeiture of
pay, restriction and extra duties. Your record shows that you aad.
not file an appeal. Following NUP you were informed that you being
recommended for discharge with an OTH. You then waived your right
to an administrative discharge where with the assistance of a
military lawyer you could have requested retention or a better
discharge. Several days later you approached your company commander
and spontaneously stated that you had used marijuana or more than
one occasion. Accordingly you were issued an OTH on 21 March 1997
after having served less than two years of your four year military
obligation.
In September of 1999 you applied to the Navy Discharge Review Board
(NDRB) asking that your discharge be upgraded so that you could
receive medical benefits from the Department of Veterans Affairs
(VA). In support of your case you admitted using marijuana but
claimed you had used it only once. Your claim of one time usage was
in direct conflict with the entry in your Marine Corps record dated
3 February 1997 showing that you spontaneously told your company
commander that you had used marijuana on more than one occasion. You
also asserted that the only reason you reported your use of marijuana
was to get the proper help and counseling to deal with your problem.
That argument also conflicted with information contained in your
record. Specifically the entry of 27 January 1997 showed that even
after you were informed that your refusal to be evaluated by a medical
officer would render you for ineligible for drug treatment at a VA
medical facility you persisted in your refusal to be evaluated.
Finally you asserted that your discharge processing was done too
hastily which ignored the fact that by failing to file an appeal to
your NJP and by waiving your right to an administrative discharge
board you ensured that. your case would be handled quickly. On 25
May 200 NDRB denied your request. A copy of NDRB’s decision is
attached. After a careful review of these proceedings this Board
concurs with findings and conclusions set out in the NDRB decision.
Having failed to obtain relief from NDRB you have applied to this
Board and in a complete reversal of the position you took in your
NDRB appeal you now claim that you never used marijuana and that your
repeated false statements to Marine Corps officials regarding your
drug usage were caused by your desire to be discharged as soon as
possible so you could return home to be with your fiancée who had
suffered a miscarriage. Even if this Board were to assume that you
are at long last telling the truth, an assumption which in the Board’s
view is not supported in any meaningful way by the evidence now before
it, it could not grant your request. If you are now telling the truth
this means you obtained your early release from the Marine Corps
through fraud and one of the most basic principles of the law of equity
is that when an individual perpetrates a fraud he or she should not
be allowed to profit from it. And that is exactly what this Board
would be doing if it granted you relief based on the grounds you now
offer. Simply put, your misconduct whether it be drug abuse or fraud
is serious and clearly justifies the characterization of your
military service as other than honorable.
Accordingly, your application has been denied. The names and votes
of the members of the panel will be furnished upon request.
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,
Executive’ Director
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