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

Docket No: 1575-21 
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 the entire record, the Board for Correction of Naval Records (Board) found the evidence submitted was 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 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, 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 considered a 25 July 2021 advisory opinion (AO) furnished by qualified mental health provider, as well as your 24 August 2021 response to same, which was reviewed by the preparer of the original AO. 

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. 

You enlisted in the Navy and commenced a period of active duty on 25 May 1983. On 9 January 1984, you received nonjudicial punishment for attempting to steal keys, a wallet, and a makeup kit, for failing to obey a lawful order, and for unlawful entry. On 9 May 1984, you received nonjudicial punishment for uttering a worthless check to the Navy Exchange. On 8 June 1984, you received nonjudicial punishment for periods of unauthorized absence totaling four days. On that day you also received a written warning concerning your misconduct. On 5 September 1985, you received nonjudicial punishment for failing to obey a lawful order. During the period from 6 to 31 January 1986 you were hospitalized and diagnosed with a cerebral contusion, with scalp lacerations, superficial left temporal scalp infection, and negative exploratory burr holes. The medical report noted that due to the burr holes it was impossible to predict your suitability for further service and your case was subsequently referred to a physical evaluation board for adjudication. On 9 April 1986, you received nonjudicial punishment for use of cocaine and for disobeying an order to march in ranks.
 
On 8 May 1986, you were notified of the initiation of administrative separation processing and your rights in connection therewith. You waived your right to an administrative discharge board, and submitted a written request for a general discharge. On 19 June 1986, your commanding officer recommended that you be discharged with an other than honorable characterization of service. On 2 August 1986, the discharge authority directed that you be discharged with an other than honorable characterization of service, and on 20 August 1986, you were so discharged. 

In 1987, you filed an application with the Naval Discharge Review Board (NDRB). In your application, you provided a written statement describing the context of your misconduct as well as the accident that resulted in your head injury. On 2 June 1987, the NDRB conducted its review, and denied your request. In 2008, you filed a petition with this Board contending as mitigating factors your youth and desire to upgrade your discharge. On 3 November 2009, this Board denied your petition. In 2017, you filed a petition for reconsideration with this Board. On 23 June 2017, this Board informed you that it was administratively closing your petition because it did not provide new matter. 

In 2019, you filed another petition with this Board, presenting as new evidence, a letter from the Department of Veterans Affairs (VA) granting service connection for treatment purposes only for Traumatic Brain Injury (TBI) and unspecified bipolar disorder and related disorder with alcohol use disorder, claimed as PTSD. You also provided an excerpt from an October 2011 psychological evaluation noting diagnoses of “cognitive disorder and bipolar disorder that was self-medicated with alcohol and drugs.” You asserted that you were given an undesirable discharge after a motor vehicle accident and you were self-medicating with controlled substances while awaiting medical discharge. On 15 May 2020, this Board denied your petition, relying in part on an AO, which found: 

[t]he Petitioner has a diagnosis of TBI and other mental health disorders that can be attributed to military service. However, his accident that resulted in the TBI occurred after four NJPs. As such, that misconduct cannot be attributed a mental health condition incurred during military service. The VA has stated that it is not possible to separate his mental health symptoms from his TBI, so his mental health symptoms are also considered to have onset following the accident. It is possible that the misconduct resulting in his final NJP could be attributed in part to mental health symptoms that developed after his head injury, but he did report 
a history of drug use prior service so it is also possible that his in-service drug use represented a continuation of pre-service behavior. Based on the preponderance of the evidence, it is my considered medical opinion that there is insufficient evidence to attribute the majority of his misconduct to a mental health condition incurred during military service. 

The Board carefully considered all potentially mitigating factors in your current petition to determine whether the interests of justice warrant relief in your case including in accordance with the Wilkie Memo. You contend in your current petition that your character of service should be upgraded to honorable because of your mental health condition that you contend was caused by the accident that occurred while you were on active duty. In particular, you stated that you were diagnosed with Traumatic Brain Injury (TBI) and PTSD post service. You contend that your diagnoses might have mitigated the substandard performance or inability to adapt to military service that led to your under other than honorable characterization of service. You also explain that you were young and immature at the time and provide background and context to your time in the Navy. You have provided records from the VA. 

In connection with your assertions relating to mental health conditions, the Board requested, and reviewed, a new AO. The AO explained that: 

Petitioner’s in-service records did not contain evidence of a diagnosis of a mental health condition or psychological/behavioral changes, which may have indicated a mental health condition. Petitioner’s TBI from his 1/4/86 car accident was well documented with diagnoses of Cerebral Contusion and Post-Concussional Syndrome, with reported short-term memory deficits and headaches. However, Petitioner’s four NJP’s prior to the car accident are not mitigated by his diagnosis of TBI. Although he claimed PTSD and post-discharge Bipolar Disorder, he did not provide any description of experiencing symptoms in-service that would meet the criteria for either mental health condition. 

Following his car accident, Petitioner contended he experienced residual symptoms consistent with a TBI of ongoing headaches and episodic temporary visual changes. It is not unusual for service members who experience a TBI, especially with continued chronic pain conditions (e.g., migraine headaches) or concerning medical conditions (e.g., episodic temporary loss of vision) to revert to past maladaptive coping skills (such as substance abuse). However, Petitioner’s history of a single episode of cocaine use in an off-duty liberty situation while socializing with other Sailors is not a typical example of self-medication behavior. Additionally, the 2018 VA Rating Decision found he was ‘sane’ at the time of his misconduct, which argued against any mitigation due to a medical or mental health condition. 

The AO concluded, “based on the available evidence, it is my considered medical opinion the preponderance of objective evidence established Petitioner was diagnosed with TBI incurred during his military service. However, the available evidence is insufficient to support his  contention that his in-service drug abuse misconduct could be attributed to his experience of TBI.” You were provided a copy of this AO, and you provided a response dated 24 August 2021, which the Board carefully reviewed. The preparer of the AO also reviewed your response, and stated, “I have reviewed Petitioner's letter of rebuttal to the 7/25/2021 Advisory Opinion and previously reviewed clinical documents to include the 1986 Physical Evaluation Board, 2018 VA Rating Decision, and other medical evaluations and treatment records. There was no new or material clinical evidence presented. Therefore, the original AO stands as written.” 

Based upon its review, the Board concluded the potentially mitigating factors that you raised were insufficient to warrant relief. With respect to your contention relating to a mental health condition, the Board concurred with the findings of the AO. The Board also determined that the misconduct that you engaged in while on active duty supported your characterization of service. As set forth in the AO, you received nonjudicial punishment on four occasions as well as having received a written warning concerning your misconduct prior to the incident that resulted in your diagnosis of TBI. In addition, the Board observed and concurred with the AO’s finding that your one-time recreational use of cocaine while on liberty while socializing with other Sailors is not typical of self-medication behavior. The misconduct that you engaged in while on active duty supports a discharge under other than honorable conditions. 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, 
10/2/2021