DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
          
Docket No: 3980-20           
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 19 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, and applicable statutes, regulations, and policies, including 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 also requested and reviewed a 26 March 2021 advisory opinion (AO) from a mental health professional. 
 
You enlisted in the Navy on 6 July 1982.  You received nonjudicial punishment on 9 November 1983, and again on 12 January 1985, for using illegal substances.  On 13 January 1985, you were notified of the initiation of administrative separation processing, and your rights in connection therewith.  You waived your right to an administrative board, and that same day your commanding officer transmitted your administrative separation package to the separation authority.  In his transmittal letter, your commanding officer explained that you “received two non-judicial punishments for substance abuse.  [Petitioner is] an episodic user, using only with friends at a special gathering.  Due to a second drug involvement, [Petitioner] is being processed for an Other than Honorable Discharge and viewed as having no potential for further military service.”  The separation authority approved your discharge, and on 11 March 1985 you were discharged with an other than honorable characterization of service.   
 
The Board carefully considered all potentially mitigating factors in your petition to determine whether the interests of justice warrant relief in your case including in accordance with the Kurta and Wilkie Memos.  In your petition, you explained that you received a blow on the head from a sheave in the arresting gear while on the flight deck of an aircraft carrier.  You included contemporaneous medical records that demonstrate you received medical treatment for the head injury from the medical department on your ship.  You contend that your performance deteriorated sharply as a result of the head injury, and that you sought alleviate the symptoms of your injury by using marijuana, and that your misconduct which formed the basis of your discharge should be mitigated by your traumatic brain injury. 
 
The Board considered the materials that you submitted with your petition, which also included character references.  In connection with your contentions, the Board sought the 26 March 2021 AO.  The AO considered all of your contentions and available records.  The AO noted that “Naval medical records document the injury, sutures to head, and headache requiring 24 hours light duty.  Following the head trauma, petitioner experienced migraines, memory loss, anger and irritability, depressive periods, poor sleep, and ringing in the ears.”  Further, according to the AO: 
 
He tried to alleviate his symptoms with marijuana (at the suggestion of fellow Sailors) which resulted in NJP and OTH discharge (additional NJP from Sailor hiding “pot pipe” in his boom box, which he claimed no knowledge of). Evaluations and Rating Decisions from the VA have deemed his service honorable for VA purposes, granted service connection for TBI at 70% disability rating, and granted service-connection for Migraines and Variants at 50% disability rating. 
 
The AO concluded, “Based on the available evidence, it is my considered medical opinion the preponderance of objective evidence established Petitioner suffered from TBI and residual medical conditions at the time of his military service, and his in-service misconduct could be mitigated by his experience of TBI.” 
 
Based upon its review, the Board concluded the potentially mitigating factors you raised were insufficient to warrant relief.  The Board concurred with the finding of the AO that your medical records include the head injury that you raise.  The Board, however, noted that your commanding officer’s transmittal letter to the separation authority described your use of marijuana as episodic and used during special gatherings with friends.  The Board did not find any contemporaneous evidence in your naval records that you sought additional follow up treatment for your head injury, or that you indicated you were using marijuana to relieve the symptoms of your head injury, or any other nexus between your drug use and the head injury.  Given the totality of the circumstances, and in light of the misconduct that was the cause of your discharge as evidenced by nonjudicial punishment on two occasions for charges relating to drug use, the Board determined that your request does not merit relief. 
 
You are entitled to have the Board reconsider its decision upon the 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,