Docket NO. 7096-20 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. 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 24 August 1978. Your pre-enlistment physicals and self-reported medical history on 12 August 1977 and 24 August 1978 both noted no neurologic or psychiatric conditions or symptoms. On 18 August 1979 you received non-judicial punishment (NJP) for two separate specifications of the larceny of government property and the wrongful possession of marijuana. On 5 March 1980 you were convicted at a Special Court-Martial (SPCM) of two separate specifications of violating a lawful general regulation for the wrongful introduction and wrongful possession of 1,235 grams of marijuana (approximately 2.7 pounds). You received as punishment confinement at hard labor for eighty-nine days, forfeitures of pay, and a discharge from the Navy with a Bad Conduct Discharge (BCD). In the interim, on 5 May 1980 you received NJP for marijuana possession. On 30 May 1980 you underwent a psychiatric suitability evaluation and the Medical Officer concluded that you had no functional or thought process disorder and did not meet the diagnostic criteria for a mental health condition. On 2 June 1980 your separation physical examination and self-reported medical history both noted no psychiatric or neurologic conditions or symptoms. Upon the completion of appellate review in your case, on 19 February 1982 you were discharged from the Navy with a BCD 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 25 April 2021. The Ph.D. observed that your active duty records did not contain evidence of a mental health diagnosis or psychological/behavioral changes indicating a mental health condition. The Ph.D. noted that although you contended you suffered from undiagnosed PTSD, you did not provide any description of symptoms, and the Ph.D. determined that there was no evidence presented indicating when you were exposed to a trauma or when your symptoms began to manifest. The Ph.D. also noted that there was no evidence presented indicating your experience of life stressors was extraordinary or unique or that you met the diagnostic criteria for PTSD or any other mental health condition on active duty. The Ph.D. concluded by opining that the preponderance of available objective evidence failed to establish you were diagnosed with or suffered from a mental health condition on active duty, or that 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 Hagel, Kurta, and Wilkie Memos. These included, but were not limited to your contentions that: (a) you were convicted of marijuana possession at a time when you were suffering from possible PTSD; (b) you were using marijuana to relieve stress during a time of conflict with Iran while serving at sea in the Persian Gulf on board the ; (c) all you have is your position in society and that you are a solid citizen and contribute to your community in a positive way; and (d) you are currently a member of the American Legion. 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 you suffered from any type of mental health condition while on active duty, or that any such mental health conditions or symptoms were 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 16 October 2020 to specifically provide additional documentary material. The Board determined the record clearly reflected that your active duty drug-related misconduct was willful and intentional and demonstrated you were unfit for further service. The Board also concluded 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. Additionally, absent a material error or injustice, the Board generally will not summarily upgrade a discharge solely for the purpose of facilitating VA benefits, medical care, or enhancing educational or employment opportunities. Accordingly, the Board determined that there was no impropriety or inequity in your discharge, and even under the liberal consideration standard for mental health conditions, the Board concluded that your serious misconduct and disregard for good order and discipline clearly merited your receipt of a BCD. The Board also noted that, although it cannot set aside a conviction, it might grant clemency in the form of changing a characterization of discharge, even one awarded by a court-martial. However, the Board concluded that despite your contentions this is not a case warranting any clemency. You were properly convicted at a SPCM of serious drug-related misconduct, and the Board did not find any evidence of an error or injustice in this application that warrants upgrading your BCD. 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. 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, 6/19/2021 Executive Director