DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 6921-20 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 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). Additionally, the Board also considered the advisory opinion (AO) furnished by a qualified mental health provider, which was previously provided to you. Although you were afforded an opportunity to submit a rebuttal, you did not do so. You originally enlisted in the Navy on 15 January 1987. Your pre-enlistment medical examination on 9 December 1986 and self-reported medical history noted no psychiatric or neurologic conditions or symptoms. On 23 September 1987 you received non-judicial punishment (NJP) for the wrongful use of a controlled substance (marijuana) and disorderly conduct/drunkenness. You did not appeal your NJP. On 7 March 1989 you received NJP for disorderly conduct/drunkenness. You did not appeal your NJP. On the same day your command issued you a “Page 13” retention warning (Page 13). The Page 13 noted your serious military offenses and expressly warned you that any further deficiencies in your performance and/or conduct may result in disciplinary action and in the processing for administrative discharge. On 9 June 1989 you received NJP for unauthorized absence lasting fourteen days, failing to obey a lawful order, and resisting arrest. On 3 January 1990 you received NJP for the wrongful use of a controlled substance (cocaine). On 3 January 1990 you were notified that you were being processed for an administrative discharge by reason of misconduct due to a pattern of misconduct and misconduct due to drug abuse. In the interim, your separation physical medical examination on 4 January 1990 and self-reported medical history noted no psychiatric or neurologic conditions or symptoms. Ultimately, on 14 February 1990 you were discharged from the Navy for a pattern of misconduct with an other than honorable (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 14 April 2021. The PhD noted that your active duty records did not contain evidence of a mental health diagnosis or psychological/behavioral changes indicating a mental health condition. The PhD determined that throughout your disciplinary actions, counselings, and administrative processing, there were no concerns noted warranting referral to mental health resources. The PhD also determined that there was no indication your substance use or misconduct was the result of a primary or secondary trauma experienced on active duty. The PhD concluded by opining that the preponderance of available objective evidence failed to establish you were diagnosed with a mental health condition, suffered from a mental health condition on active duty, or 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) you were never offered any type of chemical dependency or addiction classes; (b) you were never given the opportunity to utilize support groups; (c) you were a kid from the Developmental Resource Center and had to take the ASVAB test four or five times just get into the Navy; (d) you have overcome all of your addiction problems; and (e) if it weren’t for the Navy you wouldn’t be who you are today. 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 condition was 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 13 November 2020 to specifically provide additional documentary material. The Board determined the record clearly reflected that your active duty misconduct was willful and demonstrated you were unfit for further service. The Board also determined 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 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. 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 pattern of 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, 6/16/2021 Executive Director