Docket No: 8576-19
Ref: Signature Date                         

MR 
 
Dear Mr. : 
 
This is in reference to your application for correction of your naval record pursuant to Section 1552 of Title 10, United States Code.  After careful and conscientious consideration of relevant portions of your naval record and your application, the Board for Correction of Naval Records (Board) found the evidence submitted insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied.     
 
Although you did not file your application in a timely manner, the statute of limitation was waived in accordance with the 25 August 2017 guidance from the Office of the Under Secretary of Defense for Personnel and Readiness (Kurta Memo).  A three-member panel of the Board, sitting in executive session, considered your application on 11 December 2020.  The names and votes of the panel members 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, to include the Kurta Memo, the 3 September 2014 guidance from the Secretary of Defense regarding discharge upgrade requests by Veterans claiming post-traumatic stress disorder (PTSD) (Hagel Memo), and the 25 July 2018 guidance from the Under Secretary of Defense for Personnel and Readiness regarding equity, injustice, or clemency determinations (Wilkie Memo).  The Board also considered an advisory opinion (AO) from a qualified mental health professional dated 9 December 2020.   
 
You enlisted in the Navy on 29 October 2001, after being granted an enlistment waiver for possession of marijuana and grand theft.  On 9 December 2002, you received nonjudicial punishment (NJP) for failure to obey an order.  On 25 July 2003, you received a second NJP for wrongful use of marijuana.  Subsequently, you were notified of pending administrative separation action by reason of misconduct due to drug abuse.  After you waived yours procedural rights, your commanding officer recommended you be discharged with an other than honorable (OTH) characterization of service due to misconduct.  The discharge authority approved this recommendation and directed discharge with an OTH characterization of service by reason of misconduct due to drug abuse.  On 17 September 2003, you were discharged.   
As part of the Board’s review, a qualified mental health professional reviewed your request and provided the Board with an AO on 9 December 2020.  The AO confirmed you have a post-service diagnoses of PTSD and Major Depressive Disorder.  The AO noted a positive drug test, particularly after experiencing a traumatic event, is evidence of a behavioral change, which may have indicated a mental health condition.  Although it cannot be predicted with absolute certainty, the AO concluded that your time line of performance evaluations, proclaimed traumatic event, subsequent NJP, and PTSD diagnosis from the Veterans Affairs Medical Center lend credibility to your contention.  Based on the available evidence, the AO concluded there is sufficient evidence that you exhibited behaviors associated with PTSD during your military service and your misconduct may be mitigated by your PTSD.   
 
The Board carefully reviewed your application, weighed all potentially mitigating factors, and considered your contention that exposure to videos of the ship’s scatter bombs taking out installations and people in Iraq caused you to become “very depressed and isolated.”  You further contend that any attempts to seek assistance with your depression was “met with scorn.”  When you made an attempt to request that the videos not be played in the common areas, you were called a “snitch” and “became a personal target for beratement for the remainder of the tour.”  The Board further considered your contention that immediately following the deployment, you attempted to connect with family while on leave but “found [yourself] unable to connect at home as well.”  You contend you “drank a lot” but were still unable to “shake the feelings [you] had,” so “[you] tried marijuana in an attempt to help.”  The Board considered your remorse and regret for using drugs to cope.  However, even under the liberal consideration standard, the Board discerned no procedural defect, impropriety, or inequity in your discharge and determined your misconduct warranted an OTH character of service.  The Board, noting there was no decline in your performance that would be indicative of PTSD and your pre-service marijuana possession, concluded there was insufficient evidence demonstrating a linkage between your drug use and PTSD.  The Board, applying liberal consideration, did not find evidence of an error or injustice that warrants upgrading your characterization of service. 
 
The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in your case in accordance with the Wilkie Memo.  These included, but were not limited to, your desire to upgrade your discharge and contentions discussed above.  Based upon this review, the Board concluded these potentially mitigating factors were insufficient to warrant relief.  Specifically, the Board determined that your drug-related misconduct outweighed these mitigating factors.  Accordingly, given the totality of the circumstances, the Board determined that your request does not merit relief.   
 
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 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,