DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490

Docket No: 5466-18
SEP 30, 2019

Dear   :

This letter is in reference to your application for correction of your naval record  pursuant to Title  1O, United States Code, Section 1552. After careful and conscientious consideration of the entire record, the Board for Correction of Naval Records (Board) found 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 BCNR, sitting in executive session, considered your application on
19 August 2019.  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.   In addition, the Board  considered  a 21 December 2018 advisory opinion  (AO)  furnished  by a qualified  Navy mental  health professional,  which was previously  provided  to you.

You reenlisted in the Navy on 29 March 1989, after serving over six years of honorable service. On 26 June 1989, you received nonjudicial punishment (NJP) for article 111 (drunken driving). On 15 November 1991, you were arrested by civil authorities for possession of cocaine and pleaded guilty to possession of cocaine ant attempt to possess cocaine on 15 January 1992. On 2 May 1992, medical personnel diagnosed you with alcohol dependence, cocaine dependence, and alcohol hepatitis. On 5 June 1992, your case was forwarded to the separation authority with the recommendation that you be discharged with an other than honorable (0TH) characterization due to your civil conviction. You were discharged on 22 July 1992.

Your request was fully and carefully considered by the Board in light of the Secretary of Defense's 3 September 2014 memorandum, "Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requested by Veterans Claiming Post Traumatic Stress Disorder," the 25 August 2017 memorandum "Clarifying Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modification of their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment," and the 25 July 2018 memorandum, "Guidance to Military Discharge Review boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations."

A qualified Navy mental health professional reviewed your request and provided the Board with an AO regarding your assertion you were suffering from a mental health condition during your service.  The AO noted that you provided no post-service treatment records listing a mental health diagnosis. According to the AO, you provided information that the Department of Veterans Affairs (VA) has declined service connection for major depressive disorder, but there is no additional information regarding the VA decision, thus, there is insufficient information to attribute your claims of depression to military service. The AO also explained that, while you were in service, you were diagnosed with what is now called alcohol use disorder and stimulant use disorder [cocaine] and received treatment, which was not successful as you continued to experience difficulties, and had a civilian arrest for cocaine possession. The AO concluded that, based on the available information, there is evidence to attribute your misconduct to alcohol use disorder and stimulate use disorder but there is insufficient evidence to attribute your misconduct to depression.

The Board carefully weighed all potentially mitigating factors, such as your record of service, your desire to upgrade your discharge, and that your contention that you received an 0TH discharge based on a single civil arrest for a drug charge. The Board also considered your assertions that you were in deep depression at the time of the incident, you came back from deployment to personal problems, and that you met your mother-in-law on the pier to retrieve your car, because your wife was not there due to her infidelity while you were deployed.  Additionally, you explained that you were devastated beyond words and this is when you believe your depression first started, as you went down and could not get out of it. The Board concluded these factors and assertions were not sufficient to warrant changing your characterization of service given your misconduct, which resulted in your NJP and civil conviction for a serious offense. Further, the Board concurred with the AO's statement that there is evidence to attribute your misconduct to alcohol use disorder and stimulate use disorder but there is insufficient evidence to attribute your mi conduct to depression.

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 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 ofregularity 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,