Docket No: 3003-19 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 20 July 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, and applicable statutes, regulations, and policies, and the relevant Advisory Opinion (AO). You enlisted in the Navy and began a period of active duty on 22 May 1987. Your record indicates time lost from 23 December 1987 through 24 February 1988, during which time you were arrested on two separate occasions by civilian authorities for possession of narcotics. You were subsequently charged by military authorities with violating Uniform Code of Military Justice Article 85 (desertion) from 23 December 1987 through 25 February 1988, and Article 83 (fraudulent enlistment) for not procuring yourself to be enlisted as a Mess Management Specialist Seaman in the US Navy by means of deliberate concealment of the fact that you had a prior civilian criminal record); the charges were referred to special court-martial proceedings. On 16 June 1988, Transient Personnel Unit, forwarded the results of a urinalysis for which you tested positive for a controlled substance to your commanding officer. In September 1988, you were again arrested for possession of cocaine by civilian authorities, and in January 1989, you were convicted by civilian authorities for two counts of possession of cocaine and one count of possession and sale of cocaine. You were sentenced to 12 months in jail, but returned to your command in May 1989. You were again UA from 7 to 27 May 1989, and were notified on 30 May 1989, of administrative separation proceedings being initiated against you on the basis of misconduct due to commission of a serious military offense, misconduct due to a civilian conviction, and misconduct to drug abuse, to which you acknowledged receipt the same day. An official naval message from USS to Navy Personnel Command indicated that you were being processed for separation with an other than honorable discharge, that you had waived your right to appear before an administrative separation board, and that your chain of command felt you had no potential for future military service because of continued misconduct. You were discharged from the Navy on 15 July 1989, on the basis of misconduct-commission of a serious offense, and received an other than honorable characterization of service and a reentry (RE) code of RE-4. In your petition to the Board, you request an upgrade to your discharge characterization to honorable, and indicate that you are entitled to a disability determination and/or medical retirement from the military. You state that while you were serving in the Navy, you were the victim of a military sexual trauma (MST) and that you have since been awarded a 100% service-connected permanent disability rating. You assert that service-connected Post Traumatic Stress Disorder (PTSD) has been established and that Veterans Affairs (VA) has found your service to be honorable. You provided a VA decision rating of service connected PTSD at 70% As part of the review process, a Physician Advisor reviewed your request, and issued an AO dated 11 May 2020. The AO noted that your in-service records do not provide any evidence of a traumatic incident, MST, psychological or behavioral changes resulting from the claimed trauma/MST, or an explanation linking the experience of a traumatic incident to your significant misconduct. The AO found that there is insufficient evidence to corroborate an in-service trauma/MST, or existence of in-service psychological symptoms indicating PTSD, that may have mitigated your misconduct. The AO was provided to you, and you were given 30 days in which to submit a response. When you did not provide a response within the 30-day timeframe, your case was submitted to the Board for consideration. Your request 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.” The Board, in its review of your entire record and application, carefully considered your claim of being subjected to an MST, and noted your VA decision rating for service-connected PTSD. With respect to your request for an upgrade to your discharge characterization, the Board substantively concurred with the AO and found that even taking your statement into consideration, there was insufficient evidence to establish an in-service trauma/MST or the existence of in-service psychological symptoms indicating PTSD that mitigated your misconduct. The Board determined that the nature and frequency of your involvement with civilian authorities for numerous allegations of wrongful possession of a controlled substance, your civilian conviction in January 1989 for possession and sale of cocaine, and your periods of UA supported your other than honorable discharge. Furthermore, the Board found that your misconduct was not overcome by your assertions of MST and/or suffering from a mental health condition at the time of your Naval service. Accordingly, the Board determined that your other than honorable discharge was issued without error or injustice and does not warrant corrective action. With respect to a disability determination and/or medical retirement from the Navy, the Board noted that the fact that the VA issued a service-connected disability rating for PTSD is not considered probative on entitlement to a disability determination and/or medical retirement, because eligibility for compensation and pension disability ratings by the VA are tied to the establishment of service connection and are manifestation-based without a requirement that unfitness for military duty be demonstrated. Your receipt of substantial disability compensation from the VA is not probative of the existence of error or injustice in your naval record because the VA awarded that compensation without regard to the issue of your fitness for military duty at the time of your separation. The Board concluded that you have not demonstrated that you were, in fact, unfit to reasonably perform your duties at that time of your separation; accordingly, the Board was unable to recommend favorable action on your request. Additionally, the Board noted that SECNAVINST 1850.4 series states processing for administrative discharge for misconduct take precedence over processing for disability. Even in consideration of your assertion of MST and resultant PTSD, the Board found that your misconduct as evidenced by your periods of UA, your civilian conviction for drug-related offenses, and your positive urinalysis supported a basis for your administrative discharge (misconduct-commission of a serious offense). You have not submitted evidence or any indication that your misconduct was the result of any mental health issues caused by an assault. Additional information, such as personal statements providing some account of your traumatic event/MST and its effects on your behavior, or personnel or medical records documenting changes in your mental state or associated behaviors following trauma/MST and linked to your significant misconduct would be required in order to potentially render an alternate opinion. Should you choose to submit additional information, it will be reviewed in the context of your claims. However, at this time, there is no evidence to attribute your misconduct to PTSD from MST. 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,