DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 8681-20 Ref: Signature Date Dear Petitioner: This is in reference to your application for correction of your naval record pursuant to Title 10, United States Code, Section 1552. 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. A three-member panel of the Board, sitting in executive session, considered your application on 13 September 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, applicable statutes, regulations, and policies, to include 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 considered the advisory opinion (AO) furnished by qualified mental health provider dated 8 May 2021, 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. In December 1980, you disclosed a pre-service disciplinary history on Form NAVCRUIT 1137/7 ranging from speeding to failure to maintain proper control. You also answered “yes” to having used narcotics, dangerous drugs or marijuana. Additionally, you signed a document which provided information on the Navy’s drug abuse policy, terms, and explanation. Lastly, a report of medical history dated 21 January 1980, documented your drug use. However, an enlistment waiver was not required. You enlisted in the United States Navy and began a period of active duty on 11 February 1980. From 26 May 1981 to 11 June 1981, you were in unauthorized absence (UA) status totaling 16 days until you surrendered. On 15 June 1981, you received non-judicial punishment (NJP) for this offense. On 7 June 1982 you received a second NJP for possessing marijuana. On 19 September 1982, as a result of being UA since 20 August 1982, you were declared a deserter. On 11 January 1982, you received a third NJP for wrongful use of marijuana. On 31 January 1983, Counseling and Assistance Center (CAAC) determined you were not drug dependent and not recommended for further service. In February 1983, a substance abuse report noted you felt your drug use/abuse was recreational and you did not see any reason to change your behavior, adding that it seemed you would continue your negative behavior pattern until your goal of a discharge was obtained. While being notified of your Commanding Officer’s intent to recommend your discharge with an other than honorable (OTH) characterization of service due to drug abuse, you elected your right to consult with counsel and waived your rights to submit a statement on your behalf and to have your case heard at an administrative discharge board (ADB). In your Commanding Officer’s recommendation he stated, “…it is believed he will never fully comply with rules and regulations…he has a negative attitude towards naval service…according to CAAC counselor, his drug abuse/use is recreational and he does not see any reason to change his behavior.” In March 1983, the separation authority directed your discharge, and on 31 March 1983, you were discharged with an OTH characterization of service due to drug abuse. As part of the Board’s review, a qualified mental health professional reviewed your request for correction to your record and provided the Board with an AO regarding your assertion that you developed a mental health condition during your military service which might have mitigated the misconduct that led to your OTH. The AO noted your in-service records did document the aforementioned misconduct as well as a motorcycle incident in which caused you to have back issues, and, per your contentions, led you to use marijuana to alleviate pain and nausea. Your in-service records did not contain evidence of a diagnosis of a mental health condition or psychological/behavioral changes, which might have indicated a mental health condition. The AO opined that the preponderance of 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 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 contention that you were in a motorcycle incident which caused you to have back issues and led to your use of marijuana to alleviate pain and nausea. The Board noted an NJP for wrongfully possessing marijuana of 7 June 1982, occurred prior to the motorcycle accident of July 1982. The Board further noted that aside from your statement, diagnostic report from , and military medical records, you did not submit character letters or post-service documents to be considered for clemency purposes. Additionally, although you requested a 90 day extension in order to submit a rebuttal to the AO, you did not do so. Based upon this review, the Board concluded these potentially mitigating factors were insufficient to warrant relief. Specifically, the Board determined your misconduct outweighed these mitigating factors. Lastly, the Board concurred with the AO. 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 the 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, 9/23/2021 Executive Director