DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 8680-20 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 limitations 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 28 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). The Board also considered an advisory opinion (AO) from a qualified mental health professional dated 29 April 2021, which was previously provided to you. You entered a period of active duty in the Navy on 17 June 1980. On 14 October 1982 you received nonjudicial punishment (NJP). You were found guilty of violating a lawful general regulation for wrongful use of marijuana on or about 3 March 1982 and 22 September 1982, in violation of Article 92, Uniform Code of Military Justice. You were subsequently notified of administrative separation processing, and an administrative discharge board (ADB) convened and heard your case on 5 November 1982. The ADB proceeding was summarized on 28 November 1982 by the senior ADB member and forwarded to your commanding officer. At the proceeding your military defense counsel made an unsworn statement on your behalf and stated in pertinent part that “…due to the pressures inherent in being in a sea deployed unit and in the efforts that often times members require in order to relieve the tensions that attach themselves thereto it sort of escaped his mind, for which he deeply regrets.” Your counsel requested on your behalf that you be discharged on the basis of misconduct for which you were being processed, drug abuse, and that you be separated with a general (under honorable conditions) characterization of service on account of your essentially good character of service, but for the one NJP proceeding. Furthermore, you stated that your counsel had effectively communicated what you meant to say to the ADB members. You also stated that you “did not know, hypothetically, if [you] could abstain from further drug use in the future.” The ADB unanimously substantiated misconduct due to drug abuse, recommended your separation from the service, and that the discharge be under other than honorable conditions. You were so discharged on 25 February 1983. You contend your urinalysis was faulty and that you did not smoke marijuana. You state you were shocked that you tested positive and if it was from second hand smoke, you never felt any effects such as being light headed. 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 contentions noted above and desire to upgrade your discharge. The Board also relied on the AO in making its determination. The AO noted that although you endorsed PTSD on your application, you did not provide any description of your symptoms, purported trauma, or link to your in-service misconduct. In addition, your in-service record confirmed you admitted to drug use during your ADB hearing. Consequently, the AO concluded that the preponderance of available objective evidence failed to establish you were diagnosed with a mental health condition, suffered from a mental health condition at the time of military service, or that your in-service misconduct could be mitigated by a mental health condition. Based upon this review, the Board concluded that these potentially mitigating factors were insufficient to warrant relief. Specifically, the Board determined that your misconduct, as evidenced by your NJP and ADB proceedings, 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, 8/2/2021 Executive Director