Dear : 
 
This is in reference to your application of 21 October 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 that the evidence submitted was insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied. 
 
Although your application was not filed in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your application on its merits.  A three-member panel of the Board, sitting in executive session, considered your application on 6 February 2020.  The names and votes of the members of the panel 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, advisory opinions (AO) from a mental health provider, and applicable statutes, regulations and policies. 
 
You enlisted and began a period of active service in the Navy on 9 October 2007.  On 23 January 2009, you went to non-judicial punishment (NJP) for unauthorized absence (UA) lasting nine (9) days, and a failure to obey a lawful order.  On 3 February 2009 you went to NJP for the wrongful use of a controlled substance. 
 
Your command subsequently initiated an administrative action to separate you from the naval service for misconduct due to drug abuse.  Unfortunately, the administrative separation notification and statement of awareness/election of rights documentation is not in your service record.  However, 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 you, and given the narrative reason for separation and corresponding separation code as stated on your DD Form 214, the Board presumed that you were properly processed for separation and discharged from the Navy for misconduct due to drug abuse.  Ultimately, after waiving your right to have your case heard at an administrative separation board, on 11 February 2009 you were discharged from the Navy with a general (under honorable 
conditions) characterization of service and assigned an “RE-4” reentry code. 
 
On 21 October 2018, the Department of Veterans Affairs (VA) stated that you have a service-connected disability for an unspecified anxiety disorder with opioid use disorder (formerly anxiety disorder not otherwise specified with depression and opiate dependence), effective 3 August 2014.  The VA assigned you a 50% disability rating for such disorders.  On 6 August 2019, the Naval Discharge Review Board (NDRB) determined that your discharge was proper as issued and no change was warranted.  The NDRB determined that the evidence of record did not show that your mental health diagnoses were sufficient mitigating factors to excuse your conduct or accountability concerning your actions.  The NDRB concluded by stating that your wrongful use of opioids, absence without leave, and failure to obey orders and regulations were all conscious decisions. 
 
Your contention that you developed and suffered from severe anxiety on active duty was fully and carefully considered by the Board in light of the Secretary of Defense's 3 September 2014 memorandum, “Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requested by Veterans Claiming Post Traumatic Stress Disorder,” the 25 August 2017 memorandum, “Clarifying Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modification of their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment,” and the 25 July 2018 memorandum, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations.” 
 
A Medical Corps Officer (MCO) who is a mental health provider, reviewed your contentions and the available records, and provided the Board an initial AO dated 25 June 2019.  An updated AO was provided on 13 September 2019 after you tendered your medical records for review.  The MCO noted that your discharge paperwork reported that you experienced “pain syndromes in his abdomen, back, and jaw” during military service, but that you also demonstrated recurrent drug seeking behavior and was placed on methadone six months after your enlistment, which led to questions as to whether your substance dependence predated your military service.  The MCO also noted that you were diagnosed with an anxiety disorder and depression during your military service and that such diagnoses were service-connected.  However, the MCO observed that your drug-seeking behavior pre-dated your mental health diagnoses, and that you did not report seeking opioid usage to alleviate mental health symptoms.  Rather, you reported pain syndromes for which you sought relief.  Thus, the MCO determined that your behaviors were more consistent with drug abuse than self-medication.  The MCO opined that there was insufficient evidence to attribute your misconduct to a mental health condition other than a substance use disorder. 
 
The Board carefully weighed all potentially mitigating factors in your case, such as your contentions that included, but were not limited to:  (a) that you developed severe anxiety and were having a difficult time dealing with many personal issues and military duties, (b) in an attempt to deal with your mental health issues you turned to illicit substances, (c) that this was not the correct way to handle it and that you made a bad decision, and (d) that post-discharge you have received mental health and substance abuse treatment.  In accordance with the published guidance, 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 insufficient evidence to support a nexus between any severe anxiety or anxiety-related symptoms and your drug-related misconduct.  Even under the liberal consideration standard, the Board concluded that your drug abuse was not due to severe anxiety or anxiety-related symptoms.  The Board further determined that your drug-seeking behavior was not related to any mental health symptoms and thus was not excused or mitigated by any mental health condition.  Moreover, the Board noted that the record shows you were notified of and waived your procedural rights in connection with your administrative separation.  In doing so, you gave up your first and best opportunity to advocate for retention or a more favorable characterization of service.   
 
Additionally, the Board reviewed your application under the recent guidance provided in the Under Secretary of Defense’s memorandum dated 25 July 2018 entitled, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations” (USD Memo).  The purpose of the USD Memo is to ease the process for veterans seeking redress and assist Boards for Correction of Military/Naval Records “in determining whether relief is warranted on the basis of equity, injustice, or clemency.”  The USD Memo noted that “increasing attention is being paid to…the circumstances under which citizens should be considered for second chances and the restoration of rights forfeited,” and that “BCM/NRs have the authority to upgrade discharges or correct military records to ensure fundamental fairness.”  The USD Memo sets clear standards and principles to guide BCM/NRs in application of their equitable relief authority, and further explains that boards shall consider a number of factors to determine whether to grant relief.  However, even in light of the USD Memo, the Board still concluded that, given the totality of the circumstances, your request does not merit relief. 
 
It is regretted that the circumstances of your case are such that favorable action cannot be taken.  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.