DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 

Docket No: 1880-20 
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 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 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). 
The Board determined that your personal appearance, with or without counsel, would not materially add to their understanding of the issues involved. Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record. 
You originally enlisted in the Navy on 10 August 1999. Your pre-enlistment medical history and physical examination on 21 December 1998 noted no psychiatric or neurologic conditions or symptoms. 

On 3 October 2002 you received non-judicial punishment (NJP) for the wrongful use of amphetamine and methamphetamine. You did not appeal your NJP. Following your NJP, on 3 October 2002 you were notified that you were being processed for an administrative discharge by reason of misconduct due to drug abuse. You elected in writing to waive your rights to consult with counsel and to present your case to an administrative separation board. In the interim, you refused medical screening for drug addiction/abuse and refused to participate in any treatment program. On 9 October 2002 your separation physical examination and self-reported medical history noted no psychiatric or neurologic conditions or symptoms. Ultimately, on 17 October 2002 you were discharged from the Navy for misconduct with an other than honorable conditions (OTH) characterization of service and assigned an RE-4 reentry code. 
As part of the Board review process, the BCNR Physician Advisor who is a licensed clinical psychologist (Ph.D.), reviewed your contentions and the available records and issued an AO dated 2 March 2021. The Ph.D. initially observed that your in-service records did not contain evidence of a mental health diagnosis or any concerns noted warranting referral to mental health resources. The Ph.D. noted that you did not provide a description of your mental health symptoms or a traumatic event precipitating any PTSD. The Ph.D. concluded by opining that the evidence failed to establish you suffered from PTSD on active duty or that your in-service misconduct could be mitigated by PTSD. 

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: (a) you understand what you were discharged for was a bad think but you have since turned your life around, and (b) PTSD. 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, the Board concluded notwithstanding a post-service 2020 PTSD diagnosis, that there was no nexus between any mental health condition and/or related symptoms and your 2002 misconduct, and determined that there was insufficient evidence to support the argument that any such mental health condition was related to or mitigated the misconduct forming the basis of your discharge. As a result, the Board concluded that your drug-related misconduct was not due to mental health-related conditions or symptoms, and the severity of your misconduct outweighed any mitigation that could have been offered by such mental health conditions. The Board also concluded 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. 

The Board further noted that there is no provision of federal law or in Navy/Marine Corps regulations that allows for a discharge to be automatically upgraded after a specified number of months or years. 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 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 also determined the record clearly reflected that your misconduct was intentional and demonstrated you were unfit for further service. 

Additionally, 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. Lastly, 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 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 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 

3