DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 7552-20 Ref: Signature Date Dear Petitioner: 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 20 August 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 2 May 2021. The Board determined your personal appearance, with or without counsel, would not materially add to their understanding of the issues involved. Therefore, the Board determined a personal appearance was not necessary and considered your case based on the evidence of record. You enlisted in the Navy on 14 September 1992. On 15 September 1992, you received an administrative remarks (Page 13) counseling entry that you were being retained despite your defective enlistment and induction due to fraudulent entry into the naval service as evidenced by your failure to disclose pre-service civil involvement and drug abuse. On 25 March 1993, you received nonjudicial punishment (NJP) for wrongful use of amphetamines and methamphetamines. 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 2 June 1993, the ADB determined, by a vote of 2 to 1, the preponderance of the evidenced supported a finding of misconduct due to drug abuse and recommended separation with an other than honorable (OTH) character of service. Your Commanding Officer concurred with the ADB’s majority vote and recommended separation with an OTH character of service by reason of misconduct due to drug abuse. The discharge authority concurred and directed that you be discharged by reason of misconduct due to drug abuse with an OTH character of service. However, prior to your discharge, you tested positive for wrongful use of marijuana and the administrative OTH discharge was held in abeyance while a special court-martial (SPCM) was convened. Your record is incomplete in that it does not contain any SPCM documents, to include trial, post-trial or any appellate documentation, but a review of your Certificate of Release or Discharge from Active Duty (DD Form 214) reflects you were sentenced to a bad conduct discharge (BCD) which was subsequently approved at all levels of review. On 2 May 1994, 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 2 May 2021. The AO stated that your in-service records do not contain evidence of a diagnosis of a mental health condition or psychological/behavioral changes that may have indicated a mental health condition nor is there any indication you sought medical or mental health services for psychological symptoms. The AO noted neither episode of misconduct was attributed to attempting to address mental health symptoms or conditions. Further, the AO noted you were evaluated for substance abuse on 14 April 1983 and found “not dependent” on drugs. The AO further noted that throughout your military service, disciplinary actions, counselings, and administrative processing, there were no concerns noted which would have warranted referral to mental health resources nor did you attribute your misconduct to a mental health condition. Further, while you assert you suffered from mental health issues, you did not provide any evidence of in-service or post-service clinical diagnoses to support your claim. Based on the available evidence, the AO concluded the objective evidence failed to establish you were diagnosed with a mental health condition, 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 11 May 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 you were unknowingly dealing with depression at the time of your misconduct. Specifically, the Board considered your contention the recruiter lied to you about most aspects of your enlistment and you were tricked into joining the Navy. You contend you became depressed, started feeling bad about your situation, and started hanging around the wrong crowd. You further contend that drugs were plentiful and available on the Navy base and that you had “never in [your] life” been around these things. The Board also considered your contention you felt “set up” after you tested positive for wrongful use of marijuana that was sold to you by a supervisor at the Transient Personnel Unit just days before your OTH discharge was finalized. Further, the Board considered your remorse and request for clemency in light of your post-service character and record. However, the Board noted you did not contend you used drugs to deal with your depression and further noted inconsistencies in the account you provided at the ADB and your current explanation of events. Further, the Board noted you contend you were “never around drugs or alcohol” before the Navy, but your record indicates pre-service civil involvement and drug abuse. Additionally, the Board noted you did not did not submit advocacy letters or post-service documents to be considered for clemency purposes. Unfortunately, the Board did not find evidence of an error or injustice that warrants changing your BCD. The Board, relying on the AO and applying liberal consideration, concluded there was insufficient evidence of an error or injustice that warrants 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 your contentions discussed above. Based upon this review, the Board concluded these potentially mitigating factors were insufficient to warrant relief. Specifically, the Board determined your misconduct, as evidenced by your NJP, ADB, and SPCM, 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, 8/30/2021 Executive Director