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 17 July 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, as well as applicable statutes, regulations, and policies. 
 
You enlisted in the Navy on 18 February 1983.  On your relevant enlistment documents, you admitted pre-service drug use.  On 7 January 1985, you received a “Page 13” counseling warning (Page 13) documenting drug abuse.  The Page 13 warned you that any further deficiencies in your performance and/or conduct may result in disciplinary action and in processing for administrative separation.  On 9 January 1985, you went to non-judicial punishment (NJP) for wrongful use of marijuana.  On 30 June 1986, you commenced a period of unauthorized absence (UA) that ended 27 July 1986.  On 28 July 1986, you went to NJP for your 27-day UA and the wrongful use of marijuana a second time. 
 
On 31 July 1986, you were notified that you were being administratively processed for separation from the Navy by reason of misconduct due to drug abuse.  You waived your rights to consult with counsel and to request an administrative separation board.  In the interim, on 4 August 1986, a Medical Officer determined that you were not drug dependent.  Prior to your discharge, on 12 August 1986, you began another period of UA and did not return to military authorities.  Ultimately, on 29 August 1986, you were discharged in absentia from the Navy for misconduct with an Other Than Honorable (OTH) characterization of service and assigned an RE-4 reentry code. 
 
Your contention that you suffered from a mental health condition on active duty related to a traumatic brain injury (TBI) from a motor-vehicle accident 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.” 
 
The Board carefully weighed all potentially mitigating factors, such as your contentions that included, but were not limited to:  (a) you had an accident five months prior to your discharge with seven skull fractures and do not even remember why you were discharged, (b) that you suffer of TBI and a spinal cord injury since your discharge, (c) you are homeless, disabled in a wheelchair, and need housing, and (d) you would like your discharge changed so you can access VA medical services and housing benefits.  Unfortunately, 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, even under the liberal consideration standard, the Board concluded that there was no nexus between any TBI or TBI-related symptoms and your misconduct, and determined that there was insufficient evidence 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 TBI or TBI-related symptoms.  Moreover, the Board observed that you did not submit any clinical documentation or treatment records to support your mental health claims despite a request from the Board on 5 September 2019, to specifically provide additional documentary material.  Further, the Board noted the record shows you were notified of and waived your procedural rights in connection with your administrative separation.  In doing so, you gave up your first and best opportunity to advocate for retention or a more favorable characterization of service.  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 error or injustice in your discharge, and concluded that your drug abuse and disregard for good order and discipline merited your receipt of an OTH discharge. 
 
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.  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. 
                                                                             
 Sincerely,