DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No. 8634-20 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 23 July 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 advisory opinions (AO) furnished by a qualified mental health provider, one of 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 28 June 2001. Prior to your enlistment, your record reflects that you were discharged from the Delayed Entry Program on 12 February 2001 due to a positive urinalysis test for a controlled substance at your enlistment physical. Your pre-enlistment physical examination on 27 January 2001 and self-reported medical history both noted no psychiatric or neurologic conditions or symptoms. Specifically, on your medical history you expressly denied and answered “no” to: (a) ever attempting suicide, (b) ever being treated for a mental condition, (c) ever being a patient in any type of hospital, and (d) have you consulted or been treated by clinics or physicians within the past 5 years for other than minor illnesses. You did admit pre-service marijuana use, with the last time being within eight days of your enlistment physical. Following completion of initial recruit training, on 12 November 2001 you reported for duty on board the in . On 1 July 2002 you received non-judicial punishment (NJP) for two specifications of unauthorized absence (UA). On 6 November 2002 you received NJP for communicating a threat and two specifications of disrespect toward a superior commissioned officer. On 24 September 2003 the command received a message from the Navy Drug Laboratory in Jacksonville, Florida indicating that you test positive for methamphetamine. On the same day you were notified that you were being processed for an administrative discharge by reason of misconduct due to drug abuse. You elected in writing to expressly waive your rights to consult with counsel and to request an administrative separation board. In the interim, on 25 September 2003 you received NJP for the wrongful use of a controlled substance. Ultimately, on 24 October 2003 you were discharged from the Navy for misconduct due to drug abuse with an other than honorable (OTH) characterization of service and assigned an RE-4 reentry code. As part of the Board review process, the Board’s Physician Advisor who is a licensed clinical psychologist (Ph.D.), reviewed your contentions and the available records, and issued an AO dated 6 May 2021. The Ph.D. initially 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. determined that although you provided documentation of a current mental health diagnosis, there was no indication of onset of the disorder or a link to your military service or misconduct. The Ph.D. concluded by opining that the preponderance of the available objective evidence failed to establish you suffered from a service-connected mental health condition, or that your misconduct could be mitigated by a mental health condition. In response to the AO rebuttal matters you submitted for consideration, the Ph.D. issued a second AO on 21 June 2021. The Ph.D. noted that you had submitted post-service medical records from 2021 indicating that: (a) you had three suicide attempts: two as a teen from drinking bleach and taking sleeping pills, and a third in 2020 attempting to get AIDS with hypersexuality, and (b) you have post-service diagnoses of (i) severe mood disorder with psychotic features, and (ii) bipolar disorder, current episode mixed, severe, with psychotic features. The medical records also indicated that you began mental health treatment at age six (6). The Ph.D. stated that it was possible that military service exacerbated your pre-service mental health/behavioral symptoms, but the Ph.D. stated that any such exacerbation of symptoms did not mitigate your non-disclosure of previous mental health/behavioral treatment that included multiple suicide attempts. The Ph.D. concluded by opining that there was evidence you exhibited behaviors associated with a mental health condition on active duty and your misconduct may 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: (a) your department head on the hazed and harassed you, made it difficult to properly adjust to military service, and interfered with your abilities to concentrate, (b) you never used methamphetamine and the staff tampered with the urine samples and swapped your clean sample with a tainted one, (c) you underwent alternative behavioral treatment for adolescents in 1991 and attended alternative education classes in elementary school, (d) you were not a liability but a product of poor psychological evaluation by the military, (e) you never waived your rights to the administrative separation board, and (f) you are still proud to be an American hero and being part of the military. 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 mental health conditions and/or related 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. Even under the liberal consideration standard, the Board concluded that your misconduct was not due to mental health-related conditions or 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 misconduct was intentional and demonstrated you were unfit for further service. The Board also noted that the evidence of record did not demonstrate that you were not mentally responsible for your conduct or that you should not be held accountable for your actions. The Board noted that, contrary to your contentions, the record clearly indicates you expressly waived your right in writing to an administrative separation board. Moreover, the Board observed that your written waiver was completed and initialed on a standard, pre-printed Navy form and could not otherwise be altered or forged. The Board also relies on a preemption of regularity to support the official actions of public officers. In the absence of substantial evidence to rebut the presumption, to include evidence submitted by you, the Board presumed your urine sample tested positive for methamphetamine because it indeed was positive due to your wrongful use of such substance. Additionally, the Board determined that you had a legal, moral, and ethical obligation to remain truthful on your enlistment paperwork. Had you properly and fully disclosed your significant pre-service mental health issues and/or conditions, and either of your suicide attempts, you would likely have been disqualified from enlisting in the Navy. The Board observed that character of military service is based, in part, on conduct and overall trait averages which are computed from marks assigned during periodic evaluations. Your overall active duty trait average was 2.33 in conduct. Navy regulations in place at the time of your discharge required a minimum trait average of 2.50 in conduct (proper military behavior), for a fully honorable characterization of service. The Board concluded that your conduct marks during your active duty career were a direct result of your misconduct which justified your OTH characterization of discharge. The Board further 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 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 serious 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, 8/2/2021 Executive Director