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

Docket No: 1801-21 
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 10 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 also considered an advisory opinion (AO) furnished by qualified mental health provider, which was previously provided to you. Although you were afforded an opportunity to submit a rebuttal, you did not do so. 

You enlisted in the Navy on 17 June 2002. Your pre-enlistment medical examination on 30 January 2002 and self-reported medical history both noted no neurologic or psychiatric conditions or symptoms. On 11 December 2002 you reported for duty on board the USS  (  ) in . 

Following disciplinary action, you were notified that you were being processed for an administrative discharge by reason of misconduct due to drug abuse. Ultimately, on 12 September 2004 you were discharged from the Navy for drug-related misconduct with an other than honorable (OTH) characterization of service and assigned an RE-4 reentry code. Unfortunately, some of the administrative separation (Adsep) and disciplinary documents are not in your record. However, the Board relied on a presumption of regularity to support the official actions of public officers, and given the narrative reason for separation and corresponding separation and reentry codes as stated on your Certificate of Release or Discharge from Active Duty (DD Form 214), the Board presumed that you were properly processed and discharged from the Navy due to drug-related misconduct following some form of disciplinary action and subsequently waiving your right to an Adsep board. The Board noted that you received a “Page 13” counseling entry documenting your issuance of an RE-4 reentry code due to drug abuse. The Board also noted that in blocks 25 through 28 of your DD Form 214 it states “MILPERSMAN 1910-146,” “HKK,” “RE-4,” and “Misconduct Due To Drug Abuse,” respectively. Such DD Form 214 notations collectively refer to a discharge involving drug offenses with an Adsep board waiver. 

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 8 July 2021. The Ph.D. initially observed that your in-service records did not contain evidence of a mental health diagnosis, and the Ph.D. noted that you did not provide any details of purported trauma, symptoms, or how your symptoms affected your ability to perform your duties or daily functioning. The Ph.D. also noted that you did not present any evidence indicating that your purported life stressors were extraordinary or unique. The Ph.D. determined that the lack of information made it difficult to identify a nexus with your active duty misconduct. The Ph.D. concluded by opining that the preponderance of available objective evidence failed to establish you were diagnosed with or suffered from a mental health condition on active duty, or that your 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 Kurta, Hagel, and Wilkie Memos. These included, but were not limited to: (a) you were not given any opportunity for rehabilitation, (b) it was a one-time incident and it was during war time, and (c) you may have developed PTSD. 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 PTSD/mental health claims despite a request from the Board on 6 April 2021 to specifically provide additional documentary material. 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. 

The Board 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 noted that, although one’s service is generally characterized at the time of discharge based on performance and conduct throughout the entire enlistment, the conduct or performance of duty reflected by only a single incident of misconduct may provide the underlying basis for discharge characterization. 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 declined to summarily upgrade a discharge solely for the purpose of facilitating benefits from the Department of Veterans Affairs, 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.
 
Additionally, despite the fact that your disciplinary and Adsep records were not in your service record, the Board relied on a presumption 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 the Petitioner, the Board presumed that you were properly processed for separation and discharged from the Navy. In the end, the Board concluded that you received the correct discharge characterization based on your circumstances, and that such OTH characterization was in accordance with all Department of the Navy directives and policy at the time of your discharge. 

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, 
9/20/2021