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

Docket No: 4186-20 
Ref: Signature Date 


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 11 June 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, 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 considered an advisory opinion (AO) from a qualified mental health professional dated 31 March 2021.
 
You enlisted in the Navy on 23 June 2000. On 3 April 2002, you received nonjudicial punishment for wrongful use of ecstasy. Subsequently, you were notified of pending administrative separation action by reason of misconduct due to drug abuse and elected your right to an administrative discharge board (ADB).  On 6 May 2002, the ADB determined the preponderance of the evidence supported a finding of misconduct due to drug abuse and recommended that you be separated from the Navy with an other than honorable (OTH) characterization of service.  Your CO concurred with the ADB’s recommendation.  The discharge authority approved the ADB recommendation and directed that you be discharged by reason of misconduct due to drug abuse with an OTH characterization of service.  On 19 July 2002, you were discharged.  

As part of the Board’s review, a qualified mental health professional reviewed your request and provided the Board with an AO on 31 March 2021. The AO stated your in-service records do not contain evidence of a diagnosis of a mental health condition or psychological/behavioral changes which may have indicated any mental health condition.  Throughout your disciplinary actions, counselings, and administrative processing, the AO noted there were no concerns that would have warranted referral to mental health resources.  The AO further stated the diagnosis and opinion from the evaluating clinician who diagnosed you with PTSD was based upon a self-reported history you provided 18 years after discharge from the military service and ran counter to the available objective evidence contemporary to your enlistment, including your sworn testimony at the ADB.  Based on the available evidence, though you were diagnosed post-discharge with PTSD, the AO concluded the preponderance of available objective evidence failed to establish you suffered from a mental health condition at the time of your military service or that your in-service misconduct could be mitigated by a mental health condition.  The AO was provided to you on 6 April 2021 and you were given 30 days in which to respond.  When you did not respond after 30 days, your case was submitted to the Board for review. 
 
The Board carefully reviewed your application, weighed all potentially mitigating factors, and considered your contention the Department of Veterans Affairs (VA) upgraded your characterization of service to honorable because you were suffering from an undiagnosed case of PTSD. However, theBoard noted it is not bound by the VA’s independent determination that your service is honorable for VA purposes. Additionally, the Board considered your statement explaining your head injury on the flight deck during Operation Enduring Freedom, and your contention “no one cared about my trauma” and you began “to feel insecure and avoided everyone.”  You contend that “after talking to numerous professionals” you realize you were suffering from PTSD, which resulted in you “looking for comfort in the wrong place” and experimenting with drugs.   Lastly, the Board considered your contention you are now a husband and father of four and “this opportunitywould change [your] family’s life.” However, even under the liberal consideration standard, the Board discerned no procedural defect, impropriety, or inequity in your discharge and determined your misconduct warranted an OTH character of service. Specifically, the Board noted your sworn testimony at the ADB that you first used drugs on leave during Christmas 2000 and tried ecstasy a couple times before your July 2001 departure for deployment.  This testimony contradicts your current statement that you experimented with drugs due to the trauma you experienced on the flight deck during Operation Enduring Freedom.  The Board, applying liberal consideration, relying on the AO, and noting you did not submit any documentation or advocacy letters for consideration, did not find evidence of an error or injustice that warrants upgrading your characterization of service or granting clemency in the form of an upgraded characterization of service. 
 
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 desire to upgrade your discharge and contentions discussed above. Based upon this review, the Board concluded these potentially mitigating factors were insufficient to warrant relief. Specifically, the Board determined your serious misconduct outweighed these mitigating factors. 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, 
6/22/2021 
Executive Director