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

Docket No: 3159-20 
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 5 May 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 17 February 1998. Your pre-enlistment physical examination and self-reported medical history on 9 December 1997 both noted no psychiatric or neurologic conditions or symptoms. 

On 13 November 2002 your command issued you a “Page 13” counseling warning (Page 13) for failing to meet the body composition assessment (BCA) standards for the fall physical readiness test (PRT) cycle, as well as notifying you that you were required to participate in the Fitness Enhancement Program (FEP). The Page 13 warned you that a failure to take corrective action may result in adverse administrative actions. On 27 May 2003 you received another Page 13  warning for failing the BCA and requiring you to participate in the FEP. On 2 March 2004 you received non-judicial punishment (NJP) for the wrongful use of marijuana. You did not appeal your NJP. 

On 2 March 2004 your command notified you that you were being processed for an administrative discharge by reason of misconduct due to drug abuse. You waived your rights to consult with counsel, submit statements to the separation authority, and to present your case to an administrative separation board. Ultimately, on 26 March 2004 you were separated from the Navy for misconduct due to drug abuse 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 15 March 2021. The Ph.D. initially observed that your in-service records did not contain evidence of a mental health diagnosis or psychological/behavioral changes indicating a mental health condition. The Ph.D. noted that while you asserted you suffered from mental health issues on active duty, you did not provide any description of symptoms or how such purported symptoms interfered with your ability to function. 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 contentions that: (a) at NJP you admitted your marijuana use; (b) you received numerous accolades in 2000 and your Navy tenure was impeccable; (c) unbeknownst to you on active duty was that you suffered from depression and anxiety and self-medicated; (d) you hid your abuse on active duty and it did not surface until your positive urinalysis; (e) post-service your substance abuse increased; (f) today you are sober; and (g) you are requesting an upgrade to be eligible for veterans’ benefits. 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 convincing evidence that you suffered from any type of mental health condition while on active duty, or that any such mental health conditions or symptoms were related to or 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 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 BCNR on 28 April 2020 to specifically provide additional documentary material. 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 otherwise not be held accountable for your actions. 

The Board also 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 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. Lastly, 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. 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 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, 
5/30/2021 

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