Docket No. 6122-20
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 your application was not filed in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your case on its merits.  A three-member panel of the Board, sitting in executive session, considered your application on 18 March 2021.  The names and votes of the members of the panel 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.  In addition, the Board considered the advisory opinions contained in Senior Medical Advisor CORB letter 1910 CORB: 002 of 3 February 2021 and Director CORB letter 1910 CORB: 001 of 4 February 2021; copies of which were previously provided to you for comment.   
 
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. 
 
A review of your record shows that you entered active duty with the Navy in December 1987.  Starting in 1990, you commenced to have custody issues that eventually resulted in a dispute over physical custody of your daughter and child support.  In 1994, a congressional inquiry was initiated by your ex-wife that you assert led your chain of command to form a negative opinion of you.  It was also in 1994 that you were first diagnosed with a breathing condition.  On 16 February 1995, non-judicial punishment was imposed on you for unauthorized absence and dereliction of duty resulting in your reduction in paygrade to E4.  Meanwhile, you are placed on limited duty for your breathing condition and referred to the Physical Evaluation Board on 16 January 1996.  However, you tested positive for cocaine and non-judicial punishment was imposed on you for your wrongful use of a controlled substance on 7 March 1996.  You were again reduced in rank to E3.  This misconduct formed the basis for your administrative separation from the Navy on 3 July 1996 with an Other than Honorable (OTH) characterization of service.  Post-discharge, you attended school and were employed in the security industry.  You were diagnosed with an adjustment disorder in 2013 by the Department of Veterans Affairs. 
 
The Board carefully considered your arguments that you deserve an upgrade to your characterization of service, to have your two non-judicial punishments set aside with restoration of rank, placement on the disability retirement list, and issued medal previously earned.  You assert that you were punished for misconduct that was fabricated by your supervisor and unfit for continued naval service due to your adjustment disorder and asthma.  Unfortunately, the Board disagreed with your rationale for relief.  In making their findings, the Board substantially concurred with the advisory opinions in your case. 
 
First, the Board considered whether the evidence supports setting aside the non-judicial punishments and restoring your rank to E5.  You assert that your supervisor fabricated evidence against you based on his assumption that you were a “deadbeat dad” that did not provide child support.  You argue that these assumptions were due to false allegations raised by your ex-wife.  While the Board examined the evidence you provided regarding your child custody and support issues, they did not find the evidence persuasive with regard to your allegation that your supervisor fabricated evidence.  The Board found no direct evidence that you did not commit the misconduct that formed the basis for the 16 February 1995 and 7 March 1996 non-judicial punishments.  Additionally, the Board considered the fact you had the opportunity to challenge the charges to your Commanding Officer and appeal his guilty findings to the General Court-Martial Convening Authority.  In the Board’s opinion, you were afforded all the due process required by law as part of these two non-judicial punishment proceedings before your punishments were finalized.  The Board determined there was insufficient evidence to overturn these two decisions without direct evidence that you did not commit the misconduct for which you were punished.  As such, the Board concluded that your non-judicial punishments should remain in your record and your reductions in paygrade unchanged.   Based on the finding that your non-judicial punishment should not be set aside, the Board also concluded that your basis for administrative separation remains valid along with your OTH characterization of service.  Wrongful use of a controlled substance is behavior that constitutes a significant departure from the conduct expected of a service member and has potential to seriously damage good order and discipline within a command.  Based on the non-judicial punishment finding that you wrongfully used cocaine, the Board determined your OTH characterization remains appropriate.  The Board noted that you were afforded an opportunity to challenge your administrative separation that resulted in an OTH characterization of service discharge but elected not to do so.   
 
Regarding your request for placement on the disability retirement list, the Board determined no relief was merited.  Aside from the rationale provided by the advisory opinions in your case, the Board concluded you were not eligible for military disability processing since you were administratively separated for misconduct that qualified for an OTH characterization of service.  Military disability regulations directed misconduct related processing to supersede disability processing in such cases.  Therefore, the Board found that you were appropriately discharge for misconduct despite any qualifying disability conditions you may have possessed at the time.  However, as stated earlier, the Board substantially concurred with the rationale provided in the advisory opinions on why you did not medically qualify for placement on the disability retirement list.  So even if you were not disqualified from disability processing due to your misconduct, the Board found that the preponderance of the evidence did not support a finding of unfitness in your case.  Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to your record.   
 
With regard to your request for medals, the Board determined the evidence does not show that you exhausted your administrative remedies prior to applying to this Board.  You must first request your medals from Commander, Navy Personnel Command prior to requesting the Board take action in your case.  However, it is worth noting that Title 10, United States Code, Section 6249 stipulates that "no medal, cross, bar, or associated emblem or insignia may be awarded or presented to any individual if the service after the distinguish act or period has not been honorable."  Since you were assigned an OTH characterization of service upon your discharge from the Navy, it is more likely than not, you will not qualify for issuance of any medals or awards. 
 
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,