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

Docket No: 9193-18 
Ref: Signature Date

Dear	:

This is in reference to your application for correction of your naval record pursuant to Title 10, 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 Board, sitting in executive session, considered your application on 19 September 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, available portions of your naval record, applicable statutes, regulations, and policies, as well as a 29 July 2019 advisory opinion (AO) from a qualified mental health provider.

You enlisted in the Navy and began a period of active duty on 9 November 2000.  On 25 February 2002 when you were convicted by summary court-martial of a 66-day unauthorized absence (UA), and wrongful use of cocaine and marijuana. On 26 February 2002, you were evaluated by the command drug and alcohol program and diagnosed as drug dependent, but you declined rehabilitation treatment. Subsequently, you were notified of pending administrative separation action by reason of misconduct due to drug abuse and commission of a serious offense. After you waived your rights, your commanding officer recommended that you be discharged with an other than honorable (OTH) characterization of service.  The discharge authority approved this recommendation and, on 24 April 2002, you were discharged with an OTH.

Your request for an upgrade to your characterization of service was reviewed in consideration of your contention that you have been diagnosed with post-traumatic stress disorder (PTSD). 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.”

As part of the Board’s review, a qualified Navy mental health professional reviewed your request and provided the Board with an AO on 29 July 2019. The AO noted you did not submit medical records reflecting your mental health diagnosis, so there was insufficient evidence to attribute your misconduct to a mental health condition. The AO further stated that “while custody issues are certainly stressful and can result in development of a mental health condition, there is insufficient evidence to attribute substance abuse to a mental health condition incurred as a result of child custody battle.”  The AO was mailed to you on 31 July 2019, and you were given 30 days in which to submit a response. When you did not provide a response, your case was submitted to the Board for consideration.

The Board carefully reviewed your application, weighed all potentially mitigating factors, and considered your contention you have been diagnosed with PTSD. You also contend your child custody issues were the driving factor for your misconduct. Specifically, your wife threatened to take your son out of the state so you would never see him again. You took emergency leave to resolve the issue, to include taking the case to court.  When the court stated you must reside in the state of Florida, your attorney submitted a request to your command for transfer to Florida that was denied. You then started getting anxious, depressed, and went UA. When you returned to your command, you tested positive for controlled substances. The Board substantially concurred with the AO and determined that, absent additional information such as medical diagnoses and post-service medical treatment records, there was insufficient evidence that you suffered from an in-service mental health condition that could have impacted your misconduct. The Board determined there was insufficient evidence to support your request for a medical discharge and concluded there was no material error or injustice in your discharge.

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 the 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,