DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 1258-18 FEB 28 2019 Dear : This is in reference to your reconsideration request received on 9 February 2018. You previously petitioned the Board and were advised in our letter of 16 March 2007 that your application had been denied. Your request for reconsideration was reviewed in accordance with Board for Correction of Naval Records procedures that conform to Lipsman v. Secretary of the Army, 335 F.Supp. 2d 48 (D.D.C. 2004). After careful and conscientious reconsideration of the entire record, the Board found the evidence submitted was insufficient to establish the existence of probable material error or injustice. Consequently, your application has been denied. Because your application was submitted with a statement and evidence that were not previously considered, the Board found it in the interest of justice to review your most recent application. In this regard, your current request was carefully examined by a three-member panel of the Board for Conrrection of Naval Records, sitting in executive session, on 30 November 2018. 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, applicable statutes, regulations, and policies, and the enclosed advisory opinion (AO) of 10 July 2018. You enlisted in the Navy on 1 November 1989 with a waiver for your admitted pre-service use of marijuana. On 2 November 1989, you acknowledged your understanding of the Navy's drug and alcohol policy. It appears you served without disciplinary incident until 3 July 1990, when you received nonjudicial punishment (NJP) for two instances of unauthorized absence (UA). On 23 February 1991, you received a second NJP for a two-hour UA. On 17 September 1991, you received a third NJP for wrongful use of marijuana and two instances of UA. Subsequently you were notified of pending administrative separation action by reason of misconduct due to drug abuse and a pattern of misconduct. After you waived your procedural rights, your commanding officer recommended that you be discharged by reason of misconduct due to drug abuse and a pattern of misconduct with an other than honorable (OTH) characterization of service. The separation authority approved the administrative discharge recommendation and directed that you be separated by reason of misconduct due to a pattern of misconduct with an OTH characterization of service. On 3 October 1991, you were discharged. Your request for an upgrade to your type of discharge was reviewed in consideration of your contention that you suffered from undiagnosed post-traumatic stress disorder (PTSD) at the time of your service. Your request was fully and carefully considered by the Board in light of the Secretary of Defense's memorandum, 'Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requested by Veterans Claiming Post Traumatic Stress Disorder" of 3 September 2014 and the "Clarifying Guidance to Military Discharge Review Board 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" memorandum of 25 August 2017. As part of the Board's review, a Medical Service Corps officer reviewed your request and provided the Board with an AO dated 10 July 2018. The AO concluded that there is sufficient evidence to presume you have a diagnosis of PTSD, which may have been present from childhood due to childhood trauma you experienced. At the least, the AO concluded that the PTSD was exacerbated by the trauma that occurred during your time in service. The AO also noted that it is difficult to determine whether your misconduct was directly attributable to PTSD, especially given your explanation that you were using marijuana for pain treatment. The Board carefully reviewed your application, weighed all potentially mitigating factors, and considered your contention that you suffered from PTSD that mitigated your misconduct. The Board considered your contention you suffered from PTSD after witnessing burning bodies, a mutilated child, and people being blown up. The Board noted you were deployed on the USS to the Middle East in 1991 . Further, the Board considered your contention that you experienced problems with painkillers after falling off a ship ladder and injuring your knee. The Board also considered your contention that you felt you had "no option at that time" but to sign the discharge papers after the Chief Corpsman threatened you. Additionally, the Board considered your contention you have been clean and sober for the past nine years and have faithfully supported your disabled wife, daughter, and four grandkids, one of whom has special needs. However the Board determined that, even under the liberal consideration standard, based on your pre-service drug use and misconduct prior to deployment, your PTSD did not mitigate the seriousness of your misconduct which warranted an OTH characterization of service. It is regretted that the circumstances of your current reconsideration petition are such that favorable action cannot be taken at this time. You are entitled to have the Board reconsider its decision upon the submission of new and material evidence. New evidence is evidence not previously considered by the Board. In the absence of sufficient new and material evidence for reconsideration, the decision of the Board is final, and your only recourse would be to seek relief, at no cost to the Board, from a court of appropriate jurisdiction. 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, Executive Director