Docket No: 882-20 Ref: Signature Date Dear : 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 9 April 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, an Advisory Opinion (AO) from a qualified mental health provider, 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). You originally enlisted in the Navy on 28 June 1977. On 10 June 1983 you reenlisted in the Navy following a break in service. Your pre-enlistment physical examination and medical history on 14 April 1983 noted no neurological or psychiatric conditions or symptoms. On 4 May 1983 you were granted a drug abuse waiver to reenlist. On your enlistment application you admitted to using marijuana in the past, but denied the current use of marijuana or other drugs. On 4 May 1983 you were also notified in writing that all persons enlisting in the Navy will be subjected to drug urinalysis testing within 48 hours of arrival at Recruit Training Command. However, on 30 July 1983 you received two separate “Page 13” counseling warnings (Page 13). The first Page 13 informed you that you have been identified as a drug abuser by virtue a positive urinalysis for marijuana, and the second Page 13 documented your wrongful use of a controlled substance and warned you that any further deficiencies in performance and or conduct may result in disciplinary action and in processing for administrative separation. On 26 May 1984 you received NJP for violating a lawful general regulation by possessing drug paraphernalia, as well as for: (a) wrongful possession of marijuana, (b) wrongful use of marijuana, (c) wrongful introduction of marijuana, and (d) two separate specifications of the wrongful distribution of marijuana. You did not appeal your NJP. On 26 May 1984 you were notified that you were being processed for an administrative discharge by reason of misconduct due to drug abuse - trafficking. You waived in writing your rights to consult with counsel and to present your case to an administrative separation board. Your commanding officer (CO) strongly recommended to the separation authority that you receive an other than honorable (OTH) characterization of service. In his endorsement, the CO stated: MMFN [M]’s identification as a readily available source of illicit drugs parallels that of a civilian felony conviction which has absolutely no place in the Armed Forces of the United States. By being a drug trafficker, FN [M] has not only undermined the combat readiness of this naval vessel, but has also created an unhealthy and dangerous environment for other more professionally dedicated “Seaman” to live. Ultimately, on 13 July 1984 you were discharged from the Navy for misconduct due to drug abuse (trafficking) with an OTH characterization of service and assigned an RE-4 reentry code. As part of the Board review process, the BCNR Physician Advisor who is a medical doctor and Fellow of the American Psychiatric Association (MD), reviewed your contentions and the available records, and issued an AO dated 17 February 2021. The MD initially observed that your in-service records did not reveal any evidence of a mental health diagnosis or behavioral changes indicating any mental health conditions. The MD also observed that you did not provide any evidence of an in-service or post-service mental health condition and/or symptoms, you provided no evidence of any post-service clinical diagnoses, nor did you describe any additional symptoms you were experiencing on active duty that would indicate a diagnosable mental health condition. The MD concluded by opining that there was insufficient evidence you were either diagnosed with or suffered from a mental health condition on active duty, or that your misconduct was attributable 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 Kurta, Hagel, and Wilkie Memos. These included, but were not limited to, your assertion that your use of marijuana was for medical purposes to help with insomnia, depression, eating disorders arising from stressors of tension of shipboard service, and personal problems. However, given the totality of the circumstances, the Board determined that your request does not merit relief. In accordance with the Kurta, Hagel, 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 convincing evidence that you suffered from any type of mental health condition while on active duty, or that any such mental health condition was related to or mitigated the misconduct that formed the basis of your discharge. As a result, the Board concluded that your misconduct was not due to mental health-related symptoms. Moreover, the Board observed that you did not submit any clinical documentation or treatment records to support your mental health claims despite a request from the Board on 14 February 2020 to specifically provide additional documentary material. The Board determined the record clearly reflected that your misconduct was willful and repetitive 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 determined that your NJP for serious drug-related misconduct on 26 May 1984 was legally and factually sufficient and that your reduction in rank to paygrade E-3 as part of your punishment was proportionate to your offenses and well within your CO’s discretion to award. Thus, the Board concluded that any argument to restore your rank to E-4 was entirely without merit. 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. 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 drug-related 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,