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

Docket No: 4319-18 
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 15 August 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 regulationsand 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. In addition, the Board considered the 15 May 2019 advisory opinion (AO) furnished by a Navy mental health professional. On 15 March 2019, the Board wrote you requesting additional medical or clinical evidence from you in support of your claim, and received no response. The AO was provided to you on 15 May 2019, and you were given 30 days in which to submit a response. When you did not provide a response, your case was submitted to the Board for consideration. 

Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel would not materially add to its understanding of the issues involved. Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record. 

You enlisted in the Marine Corps on 1 July 1987. In your pre-enlistment paperwork, you signed the standard statement of understanding regarding the USMC policy concerning the illegal use of drugs. On 31 March 1989, you received non-judicial punishment (NJP) for the wrongful use of a controlled substance (methamphetamine/amphetamine). You participated in Operations Desert Shield and Desert Storm from 2 September 1990 to 30 March 1991. On 11 July 1991, you received your second NJP for wrongful use of a controlled substance methamphetamine/amphetamine). 

On 15 July 1991, you were notified that you were being processed for administrative separation from the naval service by reason of misconductv due to drug abuse. You consulted with counsel and elected to waive in writing your right to present your case to an administrative discharge board (ADB). On 23 July 1991, you underwent a medical evaluation for substance abuse and were diagnosed to be psychologically dependent to drugs/alcohol. An aftercare regimen was created for you that included a recommendation for resident/inpatient treatment. However, on 26 July 1991, you expressly declined to be enrolled in the Veteran’s Administration (VA) Drug and Alcohol Program in conjunction with your discharge. Ultimately, on 15 August 1991, you were discharged from the Marine Corps with an other than honorable (OTH) characterization of service. 

Your contention that you suffered from a mental health condition 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,” of 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
w boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations.” 

A qualified military mental health provider (MHP), reviewed your contentions and the available records, and provided the Board an AO dated 15 May 2019. The MHP observed that on your discharge physical, you acknowledged marital problems and drug abuse, but denied mental health symptoms, such as depression, excessive worry, nervous trouble of any sort, or difficulty sleeping. The MHP also 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 other than substance use disorder. 

The Board carefully weighed all potentially mitigating factors, such your contentions that included, but were not limited to: (a) that clemency is warranted because it’s an injustice to continue to suffer the adverse consequences of an OTH discharge, (b) your average pro/con ratings were consistently good or above average, (c) you received numerous awards and decorations including the combat action ribbon and good conduct medal, (d) your record of promotions showed you generally were a good Marine, (e) you were so close to finishing your tour of duty that it was unfair to give you an OTH, (f) your record of NJPs indicate only isolated offenses, (g) your use of drugs and alcohol impaired your ability to serve, (h) psychiatric problems after your combat experiences impaired your ability to serve, and (i) your command abused its authority by deciding to discharge me and did not offer you the proper care and level of support one would receive in today’s military. However, the Board found that your contentions and mitigating factors were not sufficient to warrant relief in your case given the overall seriousness of your repeated drug use on active duty.

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 evidence 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. As noted by the MHP, you received your first NJP for wrongful dug use prior to deploying to Operation Desert Shield. The Board also unanimously determined that a substance use disorder does not mitigate or excuse your misconduct. Moreover, the Board noted that, contrary to your contentions, you were offered VA drug rehabilitation treatment but refused it in writing, and the Board concluded that your argument that psychiatric problems after your combat experiences impaired your ability to serve is without merit. 

The Board also observed that you did not submit any clinical documentation or post-service treatment records to support your mental health claim, despite a request from the Board on 15 March 2019 to specifically provide additional documentary material. Further, the Board noted the record shows that 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. Lastly, the Board observed that character of military service is based, in part, on conduct and overall trait averages which are computed from marks assigned during periodic evaluations. Your overall active duty trait average was 3.86 in conduct. Marine Corps regulations in place at the time of your discharge required a minimum trait average of 4.0 in conduct (proper military behavior), for a fully honorable characterization of service. The Board concluded that your conduct marks during your active duty career were a direct result of your serious misconduct, which ultimately supported the separation authority’s decision to issue you an OTH characterization of service. 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 serious misconduct and your disregard for good order and discipline supported your receipt of an OTH 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 application of their equitable relief authority, and further explains that boards shall consider a number of factors to dermine 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, 


9/20/2019