DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS  
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490
 
SJN Docket No: 629-18 
JUL 29 2019 


This letter 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 that the evidence submitted was insufficient to establish the existence of probable material error or injustice. Consequently, your application has been denied. 

A three-member panel of the Board, sitting in executive session, considered your application on 8 April 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, as well as applicable statutes, regulations, and policies. In addition, the Board considered the five previously provided advisory opinions (AOs) furnished by Navy mental health professionals, and your respective rebuttals and supporting materials. 
You enlisted in the Navy and began a period of active duty on 19 July 1989. You denied any history of drug use or alcohol troubles in your pre-enlistment paperwork. On 31 July 1989, you were briefed on the Navy's policy regarding drug and alcohol abuse. On 6 August 1993, you received non-judicial punishment (NJP) for unauthorized absence (UA) and making a false official statement (to the executive officer of the nuclear submarine  in relation to the preliminary investigation of your UA). 

Your evaluation for the period 1 April to 6 August 1993, stated that, although you had previously "demonstrated above average knowledge and in rate skills and occasionally required direct supervision and guidance to perform assigned tasks," your performance had recently become "substandard." Specifically, you were "[c]ounselled repeatedly for substandard performance as Food Service Division Records Keeper." This evaluation referenced the aforementioned NJP and added that your performance "has not been at the level expected of a Second Class Petty Officer," you had "been reluctant to accept responbility [sic] for and correct identified deficiencies," and that you were "not recommended for advancement." In your 3 February 1995 sworn testimony before your administrative discharge board (ADB) regarding this NJP, you testified that you thought that you were "being made an example of." 

On 8 September 1993 and 24 March 1994, you qualified as a scuba diver to the depth of 130 feet on air. In your sworn testimony before your 3 February 1995 ADB, you stated that you were doing a security dive in  . You stated that your "diving supervisor" advised you to "put on more weight" but that you attempted to explain that once you were at depth it would not make a difference how "hot" it was on the surface. You stated that you "got down to about 30 feet and [you] sunk out and [you] went down to 70 feet." You stated that you and your partner "came back up and [you] came up too fast." You explained that when you "got to the surface [you] had pain to [your] hip and [your] equilibrium was gone." You stated that you were diagnosed with "having the bends and [you] were flown to Italy" and "taken to the decompression chamber." You stated that the Italian doctors "were trying to tell [you J something was wrong with [your J heart." You stated that you then went to , explained to the doctors there "what was going on and they checked [your] heart and said that [you] had Wolfe Parkinson White" syndrome. You stated that it was a "blow" to be disqualified from diving, but that you "had to be by a cardiac facility so [you  went to   ." 

The excerpts you provided from your medical records, after having filed your written application to the Board, indicate that this incident occurred I May 1994, while you were "doing a security dive at " at 1600 local time. You reported to medical officer that when you "hit 40 feet [you J felt pressure in [your] left ear and in the process of trying to clear [your J ears [you J descended to 60 feet." You reported that, "[ a ]t this point [you J panicked and ascended quickly to the surface. Total dive time 4 mins." You later reported that you "had a runny nose before [you] went in the water." Once "on the surface [you] felt left ear pain and left hip pain." You reported that you were "taken from the water and [your] left hip gave way 2-3 times along with the pain." Your pain and instability "resolved but [you] felt dizzy." You were transported to the  at 1645 and "placed on 02 by facemask." You "complained of left ear pain still and no other complaints." You were considered to have a potential "air embolism" and "left ear squeeze," and were evacuated by helicopter to an Italian Navy recompression chamber in  at 2200. According to the untranslated Italian medical record excerpts you provided, you were discharged by the Italian Navy on 3 May 1994. On 5 May 1994, you underwent an ambulatory ECG at . Based on your medical record excerpts, you returned aboard US no later than 10 May 1994. 

In your September 2017 "Star Counseling Services, Comprehensive Cliriical & Diagnostic Assessment," section "A. Presenting Problems ( exact words from client)," you state that your "discharge was not honorable, and [you are J trying to get it upgraded." You state, within the same sentence, that you were "in a diving accident in , some died and some were killed, some killed themselves and [you were not] there but found out later." You state that "[you] had a friend who died there," that you "met his family and everything," and that "[a]nother buddy of [yours] was killed in the accident as well." You concluded by stating that "You lost everything, had to do medical care. They told [you that you J had a condition called Wolf Parkinson Disease (heart condition). Then sent [you] to do shore duty in  and UA then started the process of kicking [you] out." In your 27 November 2018 rebuttal you explain, through counsel, that in the foregoing statement you were· actually "discussing different events where other servicemembers suffered their own trauma" You further explain that the "description of traumatic events" contained in your subsequently produced November 2018 Evaluation "is consistent with prior statements by [you] and counsel." 

In your 2009 application to the Naval Discharge Review Board (NDRB), you stated that "[w]hile conducting an open ocean dive off the coast of , [you] sustained an injury referred to as 'the bends.' In conjunction with this injury, [you were] diagnosed with[] Wolff-Parkinson­White [] Syndrome; a heart disorder that had not been discovered during any previous civilian or military physical examinations. Shortly after this diagnosis, [you were] assigned to shore duty in ." 

In your present application to this Board, submitted prior to your submission of the aforementioned medical record excerpts ( and with full knowledge of their contents), you state, through counsel, that you were voluntarily diving in place of a "hungover" shipmate, using the wrong weight belt provided you by your supervisor, causing you to sink below your 130 foot clearance, and that you were unable to ascend slowly enough to release the nitrogen from your bloodstream. You state that you were airlifted to a decompression chamber at an Italian hospital. Through counsel, you further state that you "lay in [your] hospital bed unable to comprehend what had just happened to [you], and [you were] to remain there for six months." You further state that "[ w ]hile [you were] at the hospital, it became apparent that [your] family was not properly alerted as to the emergency occurrence; when [you] finally called home, they wired some money to [you] so [you] would at least be able to have some cash on hand for personal items and some clothes." After the 30 October 2018 AO pointed out the inconsistency between the foregoing narrative of events and the medical records you provided, you provided a 27 November 2018 rebuttal, through counsel, acknowledging the error, and contended that the reference to your lying in your hospital bed in Italy for "six months" was meant to refer to "the total period of treatment across locations totaling six months." Although statements and representations of counsel are not evidence, it should be noted that these two statements do not resemble one another in any way, particularly when you had the medical documents -and full knowledge of their contents -at the time of drafting and providing, through counsel, the discrepant narrative to the. Board as part of your original 18 January 2018 application. The 27 November 2018 rebuttal also does not explain the remaining discrepancies between this narrative of events, and, e.g., your medical records, and your sworn testimony before your 3 February 1995 administrative discharge board. 

On 5 January 1995, you received NJP for wrongful use of marijuana, as evidenced by your 30 November 1994 positive urinalysis aboard Naval Hospital, . The 12 December 1994 urinalysis results reported positive for the metabolite for THC at "33 ng/ml," or more than twice the level of the Department of Defense "15 ng/ml" cutoff. Prior to accepting this NJP, you were afforded, and waived, your rights to consult with legal counsel or request trial by court­martial. On 9 January 1995, you submitted an appeal of your NJP. You stated that you were aware that "THC remains in your system for approximately 30 days" and that during the 30 days prior to your urinalysis, your activities included going home on leave to be with your parents and sister in , and that, to your knowledge they have never used drugs. You stated that you also went to "a few clubs both at home and in ," but did not attend any "private house parties during [that] time." You stated that you had been taking "Motrin, Benadryl, and Dimetapp," "prior to the urinalysis for migraine headaches," and that you so informed the chief petty officer conducting the urinalysis. You specifically stated that you believed that your "test result was a false positive or there was some type of procedural error" and questioned the integrity of the Navy testing facility. You further stated that "[you] have never used any type of illegal substance during [your] entire life," and that you "would never jeopardize ... [your] career with the Navy by doing any type of illegal substance." At your request, your urine sample was retested on 23 January 1995, and again determined to be positive for the metabolite for THC at 33 ng/ml.
 
In your September 2017 Star Counseling Services substance-use assessment, you disclosed you started using "Marijuana" at age "18," and that your use was "occasional." In your pre­enlistment paperwork, you denied any history of drug use or alcohol troubles. In your 2003 application to the NDRB, you stated that you "bought crack heroin and marijuana on the Navy base. Every [sic] since then [your] life has been in a downfall. "[You] been [sic] hopeless since [your] discharge. However, [you] managed to keep a job to subport [sic] [your] drug addiction. [You are] not trying to write a novel about how [your] drug addiction started, but it is a shame that it started on base and y'all couldn't offer [you] a drug rehabilitation facility." A clinical note in your service record states "Positive for THC December 94; Alert and Oriented to all spheres; No SI/HI; No psychosis; No symptoms of depression; and No evidence of chemical dependency." In your 2009 application to the NDRB, you stated that "[h ]aving been at sea for much of [your] military career, [you were] unaccustomed to the drastic changes and made a poor choice in regards to the use of a narcotic, namely marijuana." 

On 11 January 1995, the commanding officer (CO) of the Naval Hospital, , forwarded your appeal to the General Court-Martial Convening Authority (GCMCA), recommending denial of your appeal. The CO stated that "[ w ]hile there are tests that can test for some traces of marijuana in the body for up to thirty days," the tests run in your case by the Navy Drug Screening Laboratory (NDSL) "test for a nano gram level high enough to indicate a recent (3 to 4 days) deliberate consumption of marijuana." The CO stated that the dual-assay test used by the NDSL in your case screens for "possible positives and confirms for the presence of a metabolite of THC," and that this test has been determined to be the "most accurate." He noted that, in your appeal, you never contested the fact that it was your urine sample that was tested, and adds that the NDSL reported no problems with your sample. He noted that the "NDSL tests for a metabolite produced only by the body's metabolism of the psychoactive ingredient in marijuana." He further noted that "[ n ]one of the other drugs [you mentioned taking prior to your 30 November 1994 urinalysis] would cause [you] to test positive for THC." The CO also noted that a review of your medical, dental, and hospital pharmacy's records showed "no record of any prescriptions or other drugs prior to 2 December 1994." On 20 January 1995, the GCMCA found that the evidence supported your CO's determination that you committed the charged offense, that your punishment was appropriate to the circumstance, and your appeal was denied. 

On 23 January 1995, administrative discharge action was initiated to separate you from the naval service for misconduct due to due to drug abuse, and misconduct due to the serious offenses of unauthorized absence (UA) and making a false official statement. At that time, you elected to be represented by legal counsel and have your case heard before an ADB. You appeared before the ADB with legal counsel on 3 February 1995. In your sworn testimony before the ADB, you stated that you "had no reason to believe that it was not [your] urine that was tested," and that you "trust the Navy policies and [you] trust the urine testing," but contended that "something had to have gone wrong," that is "not the type of person [you are]," "not the type of atmosphere [you] have ever been around," "not something that [you] would ever do," and "that [you] have never used illegal drugs." Regarding your UA and false official statement, you testified that you thought that you were "being made an example of." On 3 February 1995, the ADB unanimously determined by a preponderance of the evidence that you had engaged in "Misconduct" (1)" Due to Drug Abuse," and (2) "Due to a Serious Offense for Unauthorized Absence and False Official Statement." The ADB unanimously determined that the "misconduct" warranted separation. The ADB unanimously determined that the "misconduct" warranted a separation characterized as "Other Than Honorable." You and your military counsel were informed that the deadline for submission of any additional matters to the ADB was 21 February 1995. On 22 February 1995, your CO forwarded your case to the separation authority stating that the ADB found that your misconduct warranted a separation characterized as 0TH. 

On 1 March 1995, your CO received the 21 February 1995 correspondence from your military counsel raising purported discrepancies with your urinalysis testing with regard to your separation for misconduct due to drug abuse. On 2 March 1995, your CO explained to the Bureau of Naval Personnel that you were separated for misconduct due to drug abuse "and for commission of a serious offense (emphasis added)." He further explained that the purported testing discrepancy had no impact or effect regarding your "second screening assay nor either of the confirmatory tests" in your case. Your CO reiterated that you should be separated from the naval service with an other than honorable (0TH) characterization of service. On 14 March 1995, the separation authority directed that you be discharged with an 0TH characterization of service. You were so discharged on 20 March 1995. 

You request an upgrade of your characterization of service on the basis that you suffered from unrecognized post-traumatic stress disorder (PTSD) at the time of your military 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, the "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," memorandum of25 August 2017, 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." 

As part of the Board's review, Navy mental health professionals further reviewed your request and provided the Board with A Os regarding your assertion that you suffered from PTSD during your service. You received and responded to those AOs. In sum, although your diving accident could result in legitimate PTSD symptoms, your misconduct began to surface prior to your diving accident, based on your first NJP. Your post-service diagnosis of PTSD cannot be said to have caused that misconduct. It is, however, possible that you could have been suffering from PTSD symptoms following the dive accident which may have contributed to your decision to use marijuana. There is no indication that you sought psychiatric services following your accident "while in-service." Your post-service diagnosis of PTSD can be attributed to your military service; however, based on the preponderance of the evidence, there is insufficient evidence to support your contention that your misconduct can be attributed to PTSD or a PTSD-related disorder. 

Based on review of all the records, and the discrepancy of your statements while in-service, and then later admission to marijuana use, your lack of candor is, in fact, substantiated. When rendering a comprehensive medical opinion, longitudinal review of behaviors (ranging from pre­service, during service and following service) is extremely important as they have been found to be statistically predictable, and it is a significant piece as to how psychiatric professionals come to conclusive diagnostic opinions. A third AO from the same Navy mental health professional states, in part, that the most recent round of correspondence from your counsel contained what appeared to be a comprehensive set of in-service medical records, which for some reason were not available for review in the past. It was noted that you were treated in Italy for a short time for decompression sickness, however the notes are written in Italian and could not be read as you provided no translation, certified or otherwise. All other medical records were reviewed in their entirety. In an earlier contention to the NDRB in 2003, you made no mention of PTSD but instead wrote, in part, that before you enlisted in the Navy, you were a college student, you bought crack heroin and marijuana on the Navy base, and ever since then your life has been in a downfall. You had been hopeless since your discharge. However, you managed to keep a job to support your drug addiction. This is contrary to what you stated in your NJP appeal, and contrary to your sworn testimony before the ADB, regarding your marijuana use in 1995, when you adamantly denied using any drugs at any time. 

As further noted in the AO, review of the medical records contemporary to your diving incident in 1994 indicates that upon every query by doctors, you admitted only to left ear pain, dizziness, and later headaches. There are no documents that mention your mental state following your decompression sickness. In all medical accounts, you denied having ever suffered from any traumatic symptoms following that event, even up until 2003. In particular, there are inconsistencies in the description of the traumatic event that meets the Diagnostic and Statistical Manual (DSM), as well as inconsistencies in the time line of your hospitalization and your description of your misconduct. What does seem clear from the record is that you experienced a difficult and emotionally challenging ordeal. It is plausible that you felt isolated and somewhat lost amidst changes to your career, and could have used marijuana during a time of stress. In your 2017 mental health evaluation, you reported that you used marijuana on occasion for pain, stress, and anxiety. It seems reasonable to conclude that your in-service marijuana use could be attributed to a mental health condition that you were experiencing in the aftermath of your diving accident and subsequent change of duty station. Your 1993 NJP, however, cannot be attributed to a mental health condition developed subsequent to the diving accident. It was further opined that there is insufficient evidence to attribute your misconduct to PTSD or a mental health condition incurred during service. 

The Board carefully weighed all potentially mitigating factors, such as your desire to upgrade your discharge, that you are Veteran who has been a model citizen, leader, and advocate for the bright futures of underprivileged youth, despite the painful encumbrance of your 0TH discharge, and your internal battle with PTSD. The Board also considered your assertions that you sustained injuries by re-surfacing too quickly from a dive or deep dive in the Mediterranean Sea, were medically treated and diagnosed with Wolff-Parkinson-White syndrome, that you were confused and isolated from your family and peers, that you remained in Italy ( or were treated in various locations) for six months, that you were relocated to  as a result of these circumstances, that you developed PTSD, although it would go undiagnosed and untreated for decades, and that your drug use was brought on by your PTSD. 

The Board concluded these factors and assertions were insufficient to warrant a change to your discharge. It is undisputed that you committed misconduct due to a serious offense for unauthorized absence and false official statement on 6 August 1993. It is undisputed that you experienced a traumatic diving event in May 1994. It is undisputed that you committed misconduct due to drug abuse on 5 January 1995. Assuming, arguendo, that you were suffering from undiagnosed PTSD due to your in-service diving accident in May 1994, it is undisputed that your May 1994 PTSD cannot be the cause of, or mitigate, your August 1993 misconduct. Consistent with your 27 November 2018 assertion that this Board should "only evaluate whether the misconduct that led to [your] discharge was attributable to [your] PTSD," as stated by your CO in March 1995, the conduct that your ADB found unanimously, and led to your discharge, was both. The basis of your separation and service characterization was two-fold: misconduct due to drug abuse, and misconduct due to a serious offense for unauthorized absence and false official statement. Contrary to the assertion in your final rebuttal that your 1993 NJP "would not have led to [your] discharge characterization," both your misconduct for drug abuse and your misconduct due to a serious offense(s), standing alone, or together, constitute "misconduct" sufficient to warrant your separation from the naval service with an other than honorable characterization of service. 

The vast preponderance of your application, supporting materials, rebuttals, and the A Os, devote themselves almost exclusively to the issue of the ADB's misconduct finding due to your NJP for drug abuse, and whether it was or could have been mitigated by your undiagnosed PTSD. At no point do you meaningfully address the separate, and distinct, ADB finding of misconduct due to your commission of the serious offenses of unauthorized absence and false official statement. Indeed, on more than one occasion you assert, through counsel, that these are "minor" offenses, completely corollary to your misconduct of drug abuse. Administrative separation for misconduct due to "Minor Disciplinary Infractions" is a completely separate basis for administrative separation under naval regulations and not implicated in your case. It should be noted that members may be separated based on commission of a "serious" military or civilian 
offense when the offense would warrant a punitive discharge pursuant to the Manual for Courts­Martial for a same or closely related offense. Commission of a serious offense does not require adjudication by non-judicial or judicial proceedings; however, the offense(s) must be substantiated by a preponderance of evidence. Your 1993 NJP for UA and making a false official statement satisfies that requirement. Accordingly, the ADB unanimously determined that you committed misconduct due to a "serious offense." The fact that you may disagree with the ADB's determination is not a basis for this Board to disturb that finding after more than two decades. 

Because the determination that your separation by reason of misconduct due to commission of a serious offense is dispositive in your case, and a sufficient basis alone for the Board to deny your application, it is unnecessary for the Board to determine the merits of your remaining allegations. Nevertheless, the Board also concurred with the AO that there is insufficient evidence to support your contention that you suffered from PTSD during your time in service that contributed to your misconduct. Under the totality of the circumstances, and for the foregoing reasons, the Board determined that the nature of your misconduct supported your 0TH discharge.

It is regretted that the circumstances of your case 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 matters. 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,