Docket No: 25-20
Ref: Signature Date                            
               

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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 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 22 March 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, and applicable statutes, regulations, and policies, to include the Kurta 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).  In addition, the Board considered the advisory opinion (AO) furnished by a qualified mental health professional dated 2 February 2021, which was previously provided to you. 
   
You enlisted in the Navy and began a period of active duty on 8 September 2000.  On 11 April 2001, you received nonjudicial punishment (NJP) for failing to obey an order, resisting apprehension, assault, underage drinking, and drunk and disorderly conduct.  On 25 April 2001, you were counseled and warned that further misconduct could result in administrative discharge action.  On 11 July 2001, you received NJP for assault.  You were again counseled and warned that further misconduct could result in administrative discharge action.  On 21 September 2001, you made a voluntary statement regarding wrongful drug use.  On 17 October 2001, you received NJP for wrongful use of marijuana.  On 18 October 2001, you were notified of administrative discharge action for a pattern of misconduct and misconduct due to drug abuse.  After being afforded your procedural rights, you elected to waive your right to have your case heard before an administrative discharge board.  On 22 October 2001, your case was forwarded to the separation authority recommending your separation from the Navy with an other than honorable (OTH) discharge due to drug abuse.  On 30 October 2001, the separation authority directed that you receive an OTH discharge due to drug abuse.  On 31March 2001, you were discharged from the Navy with an OTH characterization of service. 
 
A qualified mental health professional reviewed your request for correction to your record and provided the Board with an AO regarding your assertion that you were suffering from a mental health condition during your service.  The AO noted that the preponderance of available objective evidence fails to establish you were diagnosed with a mental health condition, suffered from a mental health condition at the time of your military service, or your in-service misconduct could be attributed to 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 Wilkie Memo.  These included, but were not limited to your statement that you believed that during your military service you knew something was wrong with you, but you did not understand that you had a mental health condition, and that you have since been diagnosed with depression and explosive disorder.  However, based upon this review, the Board concluded these potentially mitigating factors were insufficient to warrant relief.  Specifically, the Board determined that your misconduct, as evidenced by your three NJPs, for serious offenses and drug abuse outweighed these mitigating factors.  Additionally, the Board concurred with the AO that the preponderance of available objective evidence fails to establish you were diagnosed with a mental health condition, suffered from a mental health condition at the time of your military service, or your in-service misconduct could be attributed to a mental health condition.  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,