DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 1814-20 Ref: Signature Date 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 30 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 21 April 1980. Your pre-enlistment physical examination on 8 April 1980 and self-reported medical history both noted no psychiatric or neurologic conditions or symptoms. On 12 November 1980 you received non-judicial punishment (NJP) for two specifications of unauthorized absence (UA), two specifications of insubordinate conduct, and dereliction of duty. You did not appeal your NJP. On 12 January 1981 you received NJP for two specifications of violating Navy Regulations by introducing and possessing hashish on board the USS ( ). You did not appeal your NJP. On 12 January 1981 your commanding officer (CO) issued you a “Page 13” retention warning (Page 13). The Page 13 warned you that any further misconduct may result in disciplinary action and/or processing for administrative separation. However, on 1 September 1981 you received NJP for violating Navy Regulations by using, introducing, and possessing marijuana on board the USS . You did not appeal your NJP. On 13 October 1981 you were convicted at a Summary Court-Martial of breaking restriction. As punishment you were sentenced to forfeitures of pay and confinement for 30 days. On 6 August 1982 you received NJP making a false official statement and for three specifications of being an accessory after the fact to assault and drug-related offenses. Following your August 1982 NJP, you were notified that you were being processed for an administrative discharge by reason of misconduct due to a pattern of misconduct. Ultimately, on 23 August 1982 you were discharged from the Navy for a pattern of misconduct with an other than honorable (OTH) characterization of service, 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 28 December 2020. The Ph.D. initially noted that your in-service records did not contain evidence of a mental health condition or evidence of psychological/behavioral changes indicating any mental health condition. The Ph.D. noted throughout your disciplinary actions, counseling, and administrative processing, there were no concerns noted warranting referral to mental health resources. The Ph.D. also noted that marijuana use due to any purported trauma would only partially mitigate your misconduct because theft, disrespect to superiors, and making false statements are not typical forms of misconduct for someone experiencing sleep issues. The Ph.D. concluded by opining that the evidence failed to establish you were diagnosed with a mental health condition, suffered from a mental health condition on active duty, or that your in-service misconduct could be mitigated by a mental health condition. The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in your case in accordance with the Kurta, Hagel, and Wilkie Memos. These included, but were not limited to your assertions that: (a) you saw a sailor die at sea and started to experience nightmares and sleep issues and did not receive grief counseling, and as a result you started to take pills to sleep and developed a habit leading to criminal activity, (b) you acquired the HIV virus and Hepatitis C post-service, (c) you have been a member of narcotics anonymous in good standing for the past eight years, and (d) you are currently employed by the U.S. Government in at the Veterans Affairs Medical Center. However, given the totality of the circumstances, the Board determined that your request does not merit relief. In accordance with the Kurta, Hagel, 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, the Board concluded that there was no nexus between any PTSD or mental health-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 pattern of serious misconduct was not due to mental health-related conditions or symptoms. Even if the Board assumed that your pattern of misconduct was somehow attributable to any mental health conditions, the Board unequivocally concluded that the severity of your misconduct far outweighed any and all mitigation offered by such mental health conditions. The Board also determined that the evidence of record did not demonstrate that you were not mentally responsible for your conduct or that you should otherwise not be held accountable for your actions. Additionally, the Board noted that character 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 in conduct was 2.0. Navy regulations in place at the time of your discharge required a minimum trait average of 3.0 in conduct (proper military behavior), for a fully honorable characterization of service. The Board concluded that your conduct marks during your active duty career were a direct result of your pattern of serious misconduct which further justified your OTH characterization of discharge. The Board did not believe that your record was otherwise so meritorious as to deserve a discharge upgrade and determined that Sailors should receive no higher discharge characterization than is due. The Board determined that characterization under OTH conditions is generally warranted for misconduct and is appropriate when the basis for separation is the commission of an act or acts constituting a significant departure from the conduct expected of a Sailor. 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. 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 pattern of serious misconduct clearly merited your receipt of an OTH. 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, 5/5/2021 4