Dear 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 limitations 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 16 April 2021. 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, an Advisory Opinion (AO) from a qualified mental health provider, 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). You enlisted in the Navy on 31 March 1980. Your 29 March 1980 enlistment physical examination and medical history both noted no neurologic or psychiatric conditions or symptoms. Additionally, on your enlistment application you noted pre-service driving under the influence (DUI) and petty larceny convictions. On 14 March 1983 you received a “Page 13” counseling warning (Page 13) for being identified as a marijuana abuser through a positive urinalysis test. You were advised that a failure to show continued improvement in deficient areas may result in processing for administrative separation. However, on 26 April 1983 you received non-judicial punishment (NJP) for unauthorized absence, disobedience of an order from a superior commissioned officer, and being drunk on duty. On the same day your received a Page 13 documenting your NJP and further warning you that if you did not show continued improvement in deficient areas and/or continued to engage in misconduct, you may be processed for administrative separation. Between 31 May and 8 July 1983, you attended and completed Level III inpatient alcohol rehabilitation treatment. On 28 October 1983 you received a Page 13 documenting your civilian DUI conviction in The Page 13 warned you that if you did not show continued improvement in deficient areas and/or continued to engage in misconduct, you may be processed for administrative separation. On 28 February 1984 your Aviation Administrationman Designation was removed for several instances of documented incompetency and dereliction in the performance of your assigned duties. On 6 March 1984 you were convicted at a General Court-Martial (GCM) of: (a) wrongfully possessing marijuana with the intent to distribute onboard on divers occasions, (b) wrongfully distributing baggies of marijuana on divers occasions, and (c) knowingly and wrongfully using marijuana onboard on divers occasions. You received as punishment, two years of confinement, a reduction in rank to the lowest enlisted paygrade (E-1), total forfeitures of pay, and a discharge from the Navy with a Dishonorable Discharge (DD). In the interim, on 8 March 1984 you were admitted to Naval Hospital following a suicide attempt at the detention facility. The Medical Officer (MO) noted that throughout your hospitalization you remained free of signs indicating any serious mental disorder and were not diagnosed with any mental illness whatsoever requiring treatment. The MO determined that you were psychiatrically fit for confinement. The MO noted that you were unhappy about your pending term of confinement, and concluded that further suicide threats or gestures should be considered an attempt to change your environment and not a sign of mental illness. Upon the completion of appellate review in your case, on 25 May 1988 you were discharged from the Navy with a DD and assigned an RE-4 reentry code. As part of the Board review process, the Board’s Physician Advisor who is a licensed clinical psychologist (Ph.D.), reviewed your contentions and the available records, and issued an AO dated 1 March 2021. The Ph.D. observed that your in-service records did contain evidence of a substance use disorder for which you received inpatient treatment. The Ph.D. noted that there was no indication in your service record that your substance abuse or misconduct were the result of primary or secondary trauma. The Ph.D. concluded by opining that the evidence failed to establish you suffered from a mental health condition on active duty that would mitigate your in-service misconduct. The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in your case in accordance with the Hagel, Kurta, and Wilkie Memos. These included, but were not limited to: (a) your command made errors in discretion by sentencing you confinement for such lengthy period of time, (b) your confinement sentence was so disproportionately severe relative to your conduct, it cause you to have a psychological breakdown, (c) you were suffering from alcoholism coupled with an inability to adjust and cope with our environment, (d) you have been improperly stigmatized and harmed by your DD, (e) your post-service conduct demonstrates that you are a motivated and diligent person who strives to continually improve himself and grow as an individual, (f) you have clearly and convincingly demonstrated that the Navy made an error in discretion in its disproportionately severe punishment of confinement and discharge for conduct that did not rise to the level of seriousness that court-martial proceedings are normally reserved for. However, given the totality of the circumstances, the Board determined that your request does not merit relief. In accordance with the Hagel, Kurta, and Wilkie Memos, 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 mental health conditions and/or related symptoms and your misconduct, and determined that there was insufficient evidence to support the argument that any such mental health conditions mitigated the misconduct that formed the basis of your discharge. As a result, the Board concluded that your misconduct was not due to mental health-related conditions or 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 16 March 2020 to specifically provide additional documentary material. The Board noted that the evidence of record did not demonstrate that you were not mentally responsible for your conduct or that you should not be held accountable for your actions. Additionally, the Board also determined that any contention your sentence was too severe and an error of discretion was entirely without merit and not persuasive. First, a Military Judge and not your command, sentenced you to confinement based on sentencing guidelines given the level of seriousness of your misconduct and after considering any matters presented by you in extenuation and mitigation. Second, during appellate review of your DD, the Court of Military Review (CMR) could affirm only such findings of guilty and the sentence or such part or amount of the sentence as it found correct in law and fact and determines, on the basis of the entire record, should be approved. In other words, the CMR had a duty to conduct a legal and factual sufficiency review of the case regardless of whatever errors were or were not asserted/assigned by appellate defense counsel. If your GCM sentence was unduly harsh or disproportionate to your multiple drug-related offenses, the CMR would have concluded as such and ordered appropriate relief. However, the CMR affirmed the guilty findings and the sentence in your case, and did not identify any substantive, evidentiary, procedural, or sentencing defects. Accordingly, the Board determined that there was no impropriety or inequity in your discharge, and even under the liberal consideration standard, the Board concluded that your serious misconduct and disregard for good order and discipline clearly merited your receipt of a DD. The Board also noted that although it cannot set aside a conviction, it might grant clemency in the form of changing a characterization of discharge, even one awarded by a court-martial. However, the Board concluded that despite your contentions, this is not a case warranting clemency. You were properly convicted at a GCM of serious drug-related misconduct, and the Board did not find any evidence of an error or injustice in this application that warrants upgrading your DD. The Board carefully considered any matters submitted regarding your post-service conduct and accomplishments, however, even in light of the Wilkie Memo and reviewing the record holistically, the Board still concluded that given the totality of the circumstances 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, 4/20/2021 Executive Director