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

Docket No: 8333-20 
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 6 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). Additionally, the Board also considered an advisory opinion (AO) furnished by a qualified mental health provider, which was previously provided to you. You were afforded an opportunity to submit an AO rebuttal and you did do so. 

You enlisted in the Navy on 1 August 1995. Your pre-enlistment physical examination on 20 May 1995 and self-reported medical history both noted no psychiatric or neurologic conditions or symptoms. On 30 April 1997 you received notification from the Physical Evaluation Board (PEB) finding you unfit to perform the duties of your office, grade, or rank due to a physical condition that existed prior to your enlistment (EPTE). Given that your physical condition was preexisting, you were ineligible to receive physical disability benefits. On 8 May 1997 the Bureau of Naval Personnel directed that your separation by reason of PEB disability EPTE be effective as of 3 July 1997. 

However, you tested positive for marijuana on or about 11 April 1997. Unfortunately, separation processing for misconduct took precedence over separations for medical and/or disability reasons. Although the separation documents are not in your service record, the entries on your DD Form 214 indicate that you would have submitted a voluntary written request for an administrative separation in lieu of trial by court-martial for the wrongful use of a controlled substance. Prior to submitting this voluntary discharge request you would have 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 drug offense, as well as the potential sentence of confinement and the negative ramifications of receiving a punitive discharge from a military judge. Following approval of your discharge request, on 19 August 1997 you were you were separated from the Navy with an other than honorable (OTH) discharge and assigned an RE-4 reentry code. 

As part of the review process, the Board’s Physician Advisor who is also a medical doctor (MD) and a Fellow of the American Psychiatric Association, reviewed your mental health contentions and the available records, and issued an AO dated 14 June 2021. The MD initially observed that you contended you were diagnosed with chronic low back pain leading to a domino effect influencing your choice to self-medicate. 

The MD noted that you provided a 2020 Department of Veteran’s Affairs (VA) “Mental Disorders Evaluation and Independent Medical Opinion” examination, in which you were diagnosed with somatic symptom disorder, primarily pain, with depressive/anxiety symptoms (SSD). The MD also noted that the examining psychologist stated that at the time of the examination, you met criteria for SSD and the evaluating psychologist opined that your SSD was secondary to injuries received during active duty. However, the MD further noted that the evaluation did not contain an explanation of the in-service manifestations of any mental health disorder, criteria you met for a diagnosable mental health disorder, negative mental health effects on your occupational functioning, or a nexus with your in-service misconduct. The MD determined that your active duty records did not contain evidence of a mental health condition diagnosis or psychological/behavioral changes indicating a mental health condition. The MD noted that throughout your military service, disciplinary actions, and administrative processing, there were no concerns cited warranting referral to mental health resources. The MD concluded by opining that the preponderance of 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 attributed to 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: (a) your medical conditions were found to be service-connected and prevented you from performing your duties at work, (b) your discharge did not account for the strenuous circumstances of your experiences at the time due to your 
 
chronic lower back condition, (c) your lower back condition led to a domino effect influencing your choices to self-medicate, (d) you followed advice not to contest the discharge but in hindsight you should have seized that opportunity, (e) your SSD began with your chronic pain incurred during service, (f) you are in the process of requesting additional service benefits that you would be entitled to with an adjusted discharge, (g) your use of marijuana was an attempt to self-medicate the SSD and severe back pain in lieu of chemically manufactured prescription pain killers which carry a dangerously high risk of dependency, and (h) the VA determined your back issues were service-connected and aggravated by the activities you were required to perform on active duty. 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 that there was no nexus between any type of mental health conditions or symptoms and your misconduct, and determined that there was insufficient evidence to support the argument that any such mental health conditions mitigated the misconduct that formed the basis of your discharge. The Board observed that your available active duty records did not contain evidence of a mental health diagnosis or condition. The Board concluded that although you have a post-service SSD diagnosis, active duty records contemporaneous to your service lacked sufficient evidence to establish a nexus between your mental health conditions/symptoms and your in-service misconduct. As a result, the Board concluded that your misconduct was not due to mental health-related symptoms. Moreover, even if the Board assumed that your misconduct was somehow attributable to any mental health conditions, the Board unequivocally concluded that the severity of your misconduct far outweighed any and all mitigation offered by such mental health conditions. The Board determined the record clearly reflected that your drug-related misconduct was intentional 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. 

Additionally, 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 generally warranted for misconduct and 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 declined to summarily upgrade your discharge solely for the purpose of facilitating certain 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 drug-related misconduct clearly merited your receipt of an OTH, and that your separation was in accordance with all Department of the Navy directives and policy at the time of your discharge. 

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, 
8/18/2021