DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 5169-18 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 threemember panel of the Board, sitting in executive session, considered your application on 22 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 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, a 13 December 2018 advisory opinion (AO) dated 13 December 2018 from a qualified mental health provider, your AO rebuttal, and applicable statutes, regulations, and policies. You enlisted in the Navy on 16 September 2003. In February 2004, you were in an alcoholrelated incident involving a fight with other sailors after consuming an excess amount of beer. While you were detained, you became violent and it was necessary for law enforcement personnel to employ pepper spray to subdue and restrain you. On 9 August 2005, you went to non-judicial punishment (NJP) for willful destruction of government property, two specifications of assault, and for drunk and disorderly conduct. On 22 August 2005, you went to NJP for failing to obey a lawful order or regulation and misbehavior of a sentinel/lookout. In August 2005, you were also evaluated by a Substance Abuse Rehabilitation Program (SARP) counselor, and you subsequently participated -in the SARP program from 29 August 2005 to 14 September 2005. On 20 January 2006, you were arrested and charged in for driving under the influence of alcohol (DUI). You were convicted of DUI and you paid a fine, were ordered to perform community service, and had your driver's license suspended. On 7 February 2006, you were notified that you were being processed for an administrative discharge by reason of misconduct due to the commission of a serious offense, and by reason of alcohol rehabilitation failure. You elected to waive your rights to consult with counsel, submit a statement, and your right to present your case to an administrative separation board. Ultimately, on 15 March 2006, you were discharged from the Navy with an other than honorable (0TH) characteriz.ation of service. On 29 February 2016, the Naval Discharge Review Board reviewed your application for relief and determined that your discharge was proper as issued and that no change was warranted. Your contention that you suffered from a mental health condition and post-traumatic stress disorder (PTSD) while on active-duty was fully and carefully considered by the Board in light of the guidance provided by 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 Medical Corps Officer who is a qualified mental health provider, reviewed your request for correction and provided the Board an AO dated 13 December 2018. The AO noted that you submitted excerpted medical records and a psychological evaluation from 2015 with clinical diagnoses of bipolar disorder and PTSD. However, the AO determined that there is insufficient information to attribute your 2015 mental health diagnoses to military service. The AO concluded that there is insufficient evidence to attribute your misconduct to PTSD, but there is evidence to attribute your misconduct to an alcohol use disorder. The Board carefully weighed all potentially mitigating factors, including your contentions that included, but were not limited to that you behaved in a manner during your short military career that you know now is inconsistent with military/navy rules, that you cannot apologize enough for your behaviors and can only wish that you could have those moments back, that you regret your disrespect and negligence and that you did not take advantage of the opportunities given you to address and help you with your illness, that the state of your confusion was clouded by the alcohol, that you were the victim of racism, that you have been rehabilitated and continue to seek counseling, that you maintain steady work and have the responsibility of a child, and that you seek to volunteer at church and at shelters. 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 you did not suffer from the onset of any type of mental health disorder or PTSD 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 also determined that your alcohol use disorder and any related symptoms you may have exhibited did not prevent you from understanding right from wrong, and thus did not mitigate your active-duty misconduct. The Board also noted that there is no evidence in your record, and you submitted none to support or substantiate your contention regarding any racism you may have experienced. Further, the Board noted the record shows 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. Accordingly, the Board determined that there was no impropriety or inequity in your discharge, and that your cumulative instances of misconduct clearly merited your receipt of an 0TH. 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" (USO Memo). The purpose of the USO 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 USO 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 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 discreditable involvement with military and civilian authorities, 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 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.