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

Docket No: 11121-18 
Ref: Signature Date 

Dear

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 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 23 January 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, an Advisory Opinion (AO) from a qualified mental health provider, and applicable statutes, regulations and policies.
 
You enlisted in the Navy on 26 October 1992. On your pre-enlistment paperwork, you admitted pre-service marijuana use.  On 5 March 1997, you went to non-judicial punishment (NJP) for the drunken operation of a vehicle.  Following a Navy drug lab message indicating that your urine tested positive for THC, on 14 April 2000, you went to NJP for the wrongful use of marijuana.
 
On 14 April 2000, you were also notified that you were being processed for an administrative discharge by reason of misconduct due to drug abuse.  You elected your right to consult with counsel and to present your case to an administrative separation board.  On 9 June 2000, an administrative separation board convened at the Naval Submarine Base, .  The board members voted unanimously that you committed misconduct by reason of drug abuse, and voted unanimously to separate you with a general (under honorable conditions) (GEN) characterization of service.  On 30 June 2000, you received a GEN discharged from the Navy.
 
Your contention that you suffered from Post-Traumatic Stress Disorder 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 Navy mental health provider (MHP), reviewed your contentions and the available records, and provided the Board the 6 September 2019 AO.  The MHP noted that you did not submit any medical records to support a mental health diagnosis.  The MHP concluded that there is insufficient evidence to attribute your misconduct to a mental health condition suffered during service. 

The Board carefully weighed all potentially mitigating factors, such your contentions that included, but were not limited to:  (a) that you take full responsibility for your actions and in the last 18 years you never once received a DUI or drug charges in any state; (b) that you were recently terminated from your job a  ; (c) that you experienced time card fraud, harassment, and retaliation; (d) that started security clearance checks and you were confronted by other veterans about drug use stories and scare tactics; and (e) that you’ve lived a productive life since 2000 and don’t deserve the treatment.  Unfortunately, the Board found these mitigating factors and contentions were not sufficient to warrant upgrading your discharge characterization or granting any other relief. 

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, even under the liberal consideration standard, the Board concluded that there was no convincing evidence indicating 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.  The Board further determined that your marijuana use was not due to a mental health condition or mental health-related symptoms, but instead was a likely continuation of your pre­service drug use behavior you disclosed on your enlistment documents.  The Board also observed that you did not submit any clinical documentation or post-service treatment records to support your mental health claims despite a request from Board on 18 June 2019 to specifically provide additional documentary material.  Accordingly, the Board determined that there was no probable material error or injustice in your discharge, and even under the liberal consideration standard, the Board found that your misconduct and disregard for good order and discipline merited your receipt of a GEN discharge.
 
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 the 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 and your drug-related misconduct, 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. 

Sincerely,