DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 1976-19 Ref: Signature Date 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 23 April 2020. 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, an Advisory Opinion (AO) from a Navy mental health provider, and applicable statutes, regulations and policies. You originally enlisted in the Navy on 29 July 1999. On 25 May 2000, you received a “page 13” counseling warning (Page 13) indicating that ARD screened you for alcohol dependence and recommended that you be admitted to Level III inpatient treatment at ARD However, you declined treatment. On your periodic evaluation for the period ending 15 July 2000, you were rated “significant problems,” you received a 1.50 trait average out of a possible 5.0, and you were not recommended for reenlistment. The evaluation narrative described you as a marginal performer: MSSN [D] has no comprehension of the MS rating. Fails to meet minimum work standard and has been removed from the barracks because of his haphazard attitude toward his job and reassigned to work directly for the Admin Dept LCPO…He needs constant supervision and cannot be relied on to complete any assigned task. Needs to be constantly prodded to accomplish any assigned task…Must be reminded how to wear his uniform and what can be worn on the uniform. Constantly flaunts authority with the wearing of a tongue ring. Does not show respect to anyone in a senior leadership role…Became such a problem in the Personnel office because of his continued conflict with all personnel in the office, and lack of motivation, he was removed and sent to First Lieutenant where he will get more supervision and given only the simplest jobs. On 7 December 2001, you went to non-judicial punishment (NJP) for unauthorized absence (UA), failing to obey a lawful order or regulation, and bribery and graft. On 10 July 2003, you went to NJP for the wrongful use of a controlled substance. Ultimately on 28 July 2003, you were discharged from the Navy at the end of your active obligated service with a general (under honorable conditions) (GEN) characterization of service. On 9 July 2009, the Naval Discharge Review Board determined that your discharge was equitable and proper as issued and no change was warranted. Your contention that you suffered from a mental health condition on active duty was fully and carefully considered by the Board in light of the Secretary of Defense's 3 September 2014 memorandum, “Supplemental Guidance to MilitaryBoards 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 review process, the Board Mental Health Advisor (MHA), who is a licensed clinical psychologist, reviewed your contentions and the available records and issued an AO dated 8 January 2020. The MHA initially observed that you have a diagnosis of a trauma-related disorder which the VA has determined is service-connected. However, the MHA determined that there is insufficient information regarding your mental health symptoms to attribute your misconduct to a mental health condition and specifically noted that it was difficult to consider how bribery and graft is attributable to a trauma-related disorder. The MHA concluded by opining that there is insufficient evidence that your misconduct should be attributed to a mental health condition. The Board carefully weighed all potentially mitigating factors, such as your contentions that included but were not limited to: (a) that your drug abuse was brought on by your inability to properly cope with the responsibilities you were tasked with after September 11th, (b) being responsible for the safety of 400+ military personnel accompanied by the fear that you could face hostile threats or actions at any time made it very difficult to perform these tasks for the extended time you were assigned that post, (c) you turned to substances that both kept you awake and alert, as well as allowing an escape from the stress caused by your assignment, (d) your incidents resulted as you struggled to find a way to cope with the emotions (stress, fear, anxiety) that your posting triggered, (e) in retrospect you would like to think you could have found better ways to cope, (f) since your discharge you have had no significant legal troubles and do not use illicit drugs, and (g) that you have returned to college and earned your associate’s degree and are working on your bachelor’s degree. However, the Board determined these mitigating factors and contentions were not sufficient to warrant upgrading your discharge or granting any other relief in your case. In accordance with the published guidance, the Board gave liberal and special consideration to your record of service and your contentions about any traumatic or stressful events you experienced and their possible adverse impact on your service. However, the Board concluded that there was insufficient evidence (a) to support a nexus between any PTSD and/or PTSD-related symptoms and your misconduct, or (b) to support the argument that any such mental health condition mitigated the misconduct that formed the basis of your discharge. Even under the liberal consideration standard, the Board concluded that your misconduct was not due to PTSD or PTSD-related symptoms. The Board further unequivocally determined that your NJP for bribery and graft was intentional, premeditated misconduct and thus would never be excused or mitigated by any mental health condition. Moreover, the Board noted that characterization under other than honorable (OTH) conditions is generally warranted for misconduct. The Board also noted that the characterization of military service is based, in part, on conduct and overall trait averages which are computed from marks assigned during periodic evaluations. Your overall active duty trait average was 2.0 in conduct/military behavior. Navy regulations in place at the time of your discharge required a minimum trait average of 2.5 in conduct/military behavior for a fully honorable characterization of service. The Board determined that your conduct/military behavior marks during your active duty career were a direct result of your misconduct, which ultimately supported the separation authority’s decision to issue you a GEN characterization of discharge. Lastly, absent a material error or injustice, the Board generally will not summarily upgrade a discharge solely for the purpose of facilitating VA benefits, or enhancing educational or employment opportunities. Accordingly, the Board determined that there was no probable material error or injustice in your discharge and concluded that your serious misconduct and disregard for good order and discipline merited your receipt of a GEN discharge. You contended that in order to stand armed watch, it would have been an absolute requirement that you be weapons qualified. However, the Board determined that the evidence you provided was insufficient to establish that you earned the rifleman sharpshooter medal and the pistol marksman medal. While your PQS record (NAVPERS 1070/604) indicates M11 and M16 PQS titles, the Board noted that your PQS record does not mention any qualifying score or proficiency level earned for each weapon. Thus, the Board concluded that such PQS notations likely meant that you only completed a familiarization course for each weapon and did not attain the minimum qualifying scores, absent any evidence to the contrary. Additionally, the Board reviewed your application under the recent guidance provided in the Under Secretary of Defense’s memorandum dated 25 July 2018 entitled, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations” (USD Memo). The purpose of the USD Memo is to ease the process for veterans seeking redress and assist Boards for Correction of Military/Naval Records “in determining whether relief is warranted on the basis of equity, injustice, or clemency.” The USD Memo noted that “increasing attention is being paid to…the circumstances under which citizens should be considered for second chances and the restoration of rights forfeited,” and that “BCM/NRs have the authority to upgrade discharges or correct military records to ensure fundamental fairness.” The USD Memo sets clear standards and principles to guide BCM/NRs in application of their equitable relief authority, and further explains that boards shall consider a number of factors to determine whether to grant relief, such as positive or negative post-service conduct, including any arrests or convictions. However, even in light of the USD Memo, the Board still concluded that, given the totality of the circumstances, your request does not merit relief. 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.