Docket No: 2317-18 
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 17 June 2019.  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, relevant portions of your naval record, as well as applicable statutes, regulations, and policies.  In addition, the Board considered the 8 May 2019 advisory opinion (AO) furnished by a qualified Navy mental health professional. 
 
You enlisted in the Navy and began a period of active duty on 1 May 1990.  On 27 September 1990, you received nonjudicial punishment (NJP) for three specifications of disobeying a lawful order by drinking alcohol underage, and wrongfully having alcohol in the barracks.  You were counseled and warned that further misconduct could result in administrative separation.  On 24 June 1991, you received NJP for wrongful use of marijuana.  You were again given a retention warning concerning further misconduct.  On 13 March and 25 June 1992, you received NJP for dereliction in the performance of your duties, and wrongful use of marijuana.  Subsequently, administrative discharge action was initiated to separate you from the Navy due to a pattern of misconduct, commission of a serious offense, and drug abuse.  After you waived your procedural rights, your case was forwarded to the separation authority with the recommendation that you receive an other than honorable (OTH) discharge.  You received an OTH discharge on 21 July 1992. 
 
You request an upgrade of your characterization of service partially on the basis that you were emotionally and physically distraught over an assault that occurred in May 1992.  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. 
 
A qualified Navy mental health professional reviewed your request for correction to your record and provided the Board with an AO regarding your assertion you were emotionally distraught over the assault and other things that occurred in the Navy.  The AO noted, in part, that you provided no medical records to support that you have a mental health condition incurred as a result of your military service.  Your service record indicates that your discharge was related to repeated substance use, for which you entered the Navy on a waiver.  In your application, you explained that you have seen multiple military physicians and non-military medical providers, as well, however, no medical records were submitted with your application.  Additional records, including any available in-service and post-service medical records, describing your mental health condition and its specific link to your in-service misconduct are required to render an alternate opinion.  At this time, based on the available evidence, there is insufficient evidence that you incurred a mental health condition during your military service, or that your misconduct should be attributed to a mental health concern.  A copy of the AO was mailed to you on 10 May 2019 and you were provided 30 days in which to submit a response or additional records for the Board to consider.  When a response was not received, the Board considered your case on the available evidence of record. 
 
The Board carefully considered your request to upgrade your discharge.  The Board considered you assertions that the main reason for your discharge was an incident where you were assaulted by a higher ranking individual, yet you were the one who go into trouble for defending yourself, and that you have been emotionally and physically distraught over the incident as well as other things you went through in the Navy since your discharge.  You did not, however, provide any supporting evidence of this assertion.  The Board concluded these factors and assertions were not sufficient to warrant changing your characterization of service given your misconduct, which resulted in four NJPs, two of which involved the wrongful use of marijuana, despite the fact that you were warned of the consequences of further misconduct on more than one occasion.  Further, the Board concurred with the AO’s statement that there is insufficient evidence that you incurred a mental health concern during your military service, or that your misconduct should be attributed to a mental health concern.  Even under the liberal consideration standard, the Board found that the seriousness of your misconduct merited an OTH discharge. 
 
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,