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

Docket No: 4526-20 
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 1 November 1993. Your pre-enlistment medical history and physical examination on 26 March 1993 both noted no psychiatric or neurologic conditions or symptoms. The Board noted that in a previous enlistment you successfully completed a Level III inpatient alcohol rehabilitation treatment in March 1995. 

Your last reenlistment commenced on 16 February 2001. The Board noted that for the annual reporting period ending 15 March 2001, you were ranked the #1 E-5 petty officer out of 87 in your forward-deployed afloat AIMD on board the USS  (  ). On 10 July 2001 you transferred to a shore duty billet in , . 
On 29 October 2002 the Navy Drug Lab in ,  (NDLSD) notified your command that your urine sample tested positive for methamphetamines at 1,290 ng/ml, above the Department of Defense administrative cutoff level of 500 ng/ml. During the subsequent Criminal Investigations Division (CID) investigation, you waived your Article 31b rights and agreed to be interviewed on 1 November 2002. At your CID interview you denied any illegal drug use, declined to make a written statement, declined to participate in a polygraph examination and declined to allow investigators to search your residence. You admitted you were currently taking two prescription medications, neither of which would have caused a positive test for methamphetamines.
 
Prior to your CID interview, you provided a second separate urine sample included in a batch of eight samples that was received by NDLSD on 30 October 2002. Your second urine sample tested positive for methamphetamine at 955 ng/ml. This positive test result was unbeknownst to you or CID at the time of your CID interview on 1 November 2002 because NDLSD did not report the test results to your command until 8 November 2002. On your evaluation for the period ending 15 November 2002 you were ranked in the bottom 40% of E-6 petty officers out of 75. 

On 28 April 2003 NDLSD notified your command that your urine sample tested positive for methamphetamines a third time at 767 ng/ml. On 13 May 2003 you were notified that you were being processed for an administrative discharge by reason of misconduct due to drug abuse using notification procedures. The least favorable characterization using notification procedures was general (under honorable conditions) (GEN). You elected in writing to waive your rights to consult with counsel, present your case to an administrative separation board, and for General Court-Martial Convening Authority review of your discharge. 

However, in the interim, your command decided to forego administrative separation and instead pursue a court-martial for your multiple instances of wrongful drug use. This effectively superseded any previous administrative separation notification and subsequent election of rights. 

On 11 June 2003 you submitted a voluntary written request for an administrative separation in lieu of trial by court-martial for two specifications of the wrongful use of methamphetamine, and one specification of making a false official statement. Prior to submitting this voluntary discharge request you conferred with a qualified military lawyer, at which time you would have been advised of your rights and warned of the probable adverse consequences of accepting such a discharge. As a result of this course of action, you were spared the stigma of a court-martial conviction for your offenses, as well as the potential sentence of confinement and the negative ramifications of receiving a punitive discharge from a military judge. Expressly contained within your separation request was your admission of guilt for the wrongful use of methamphetamines on two separate occasions as well as making a false official statement. On 19 June 2003 the separation authority, Commander, Navy Region Southwest, directed your discharge under other than honorable conditions (OTH). Ultimately, on 10 July 2003 you were separated from the Navy with an OTH discharge and assigned an RE-4 reentry code. 

On 19 September 2017, the Naval Discharge Review Board (NDRB) denied your application for a discharge upgrade. Given that your application included a claim of certain mental health conditions, the NDRB included a member on their board panel that was either a physician, clinical psychologist, or psychiatrist. The NDRB reviewed your case and applied liberal consideration to your contention that mental health conditions and/or symptoms contributed to the circumstances underlying your discharge. However, the NDRB denied relief. The NDRB observed that the record reflected that you tested positive for methamphetamines six months apart and engaged a civilian to assist in a conspiracy to avoid responsibility for your drug abuse. The NDRB did not find the level of premeditation required to orchestrate your misconduct and actions to be mitigated by mental anguish. The NDRB concluded by stating that mental anguish over an existing policy was not an excuse to abuse methamphetamines. 

As part of the Board review process, the BCNR Physician Advisor who is a medical doctor and Fellow of the American Psychiatric Association (MD), reviewed your contentions and the available records and issued an AO dated 2 April 2021. The MD initially observed that you contended undiagnosed major depression and anxiety during your enlistment due to being gay during the military era of “Don’t Ask, Don’t Tell” (DADT) caused you great fear of a dishonorable discharge, and guilt/shame at hiding your true self. The MD noted that you contended you developed increasing depressive and anxiety symptoms as your career progressed because you did not feel you could seek command or mental health assistance, as revealing your conflict between being gay and the DADT policy would lead to your discharge from the Navy you loved to serve. The MD also noted that as a maladaptive coping strategy against the depression and psychological distress, you began using methamphetamine, which resulted in multiple positive urinalyses. The MD determined that your contentions were supported by post-discharge psychological evaluations confirming the development of a major depressive disorder with anxiety despite successfully serving in the Navy due to the stress of DADT which led to poor judgment in self-medicating with methamphetamines. The MD concluded by opining that the preponderance of objective evidence supported your contention of undiagnosed major depression on active duty and that your in-service misconduct could be mitigated by your 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) your separation was premised on the representation that your discharge characterization would be no less favorable than GEN; (b) the circumstances leading to your discharge were the direct result of mental anguish caused by the DADT policy; (c) as much as you loved serving in the Navy, you deeply struggled with hiding who you were and the prohibition on discussing your sexuality with any of your fellow Sailors; (d) although you were able to disguise who you were for a decade, in time you found your mental health eroding and it became increasingly difficult for you to continue oppressing who you were; (e) the additional free time shore duty provided was detrimental because it gave you more time to think which only aggravated your mental depression over the DADT policy and your related sexuality which ultimately led you to use drugs; (f) by the winter of 2002, you were in a deeply depressed state of mind and turned to methamphetamines as a coping mechanism; (g) you firmly believe that if DADT did not exist and you could have been open about your sexuality, you would have never turned to drugs and would still be proudly serving in the Navy; (h) DADT directly caused you to suffer from mental health issues ultimately leading to your separation from the Navy; (i) although you were able to hide your growing distress over the issue for years, when you transferred to shore duty and had more free time in 2001 something inside you finally broke; (j) after nearly a decade of suppressing who you were as a person and hiding your emotional turmoil from your shipmates for fear of losing your career, your mental well-being finally collapsed; (k) two licensed therapists who have treated post-service you opined that DADT caused you to suffer from serious depression, anxiety and PTSD, and the NDRB did not have the benefit of these written opinions when rendering its decision; and (l) your primary therapist issued an expert opinion finding that your drug use and irrational behavior during your final year on active duty were caused by the trauma imposed by DADT. 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 any AO or post-discharge mental health diagnoses to the contrary, that there was no nexus between any mental health conditions and/or related symptoms and your misconduct, and determined that there was insufficient evidence to support the argument that any such mental health conditions were 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 in any way to mental health-related conditions or symptoms. The Board also noted 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 reflected that your misconduct was willful, deliberate, and intentional and demonstrated you were unfit for further service. 

The Board also determined that any arguments of you having assurances your discharge would be no less favorable than a GEN were without merit. Once your command preferred court-martial charges and decided to forego the administrative separation route in your case, such action preempted and cancelled any previous administrative separation notification and subsequent election of rights. As a result, at a Special Court-Martial you could have received a punitive discharge which in turn made an OTH discharge the most likely possibility when routing a discharge request in lieu of trial by court-martial for drug-related misconduct. 

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 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 cumulative drug-related misconduct 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, 
5/4/2021