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

Docket No: 7805-18 
Ref: Signature Date

Dear	:

This letter is in reference to your application of 9 August 2018 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.

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 10 October 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, an Advisory Opinion (AO) from a qualified mental health provider, and applicable statutes, regulations, and policies. The AO was provided to you on 15 July 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.

You enlisted in the Navy and began a period of active duty on 4 April 2001. On 1 October 2002, you went to non-judicial punishment (NJP) for the failure to obey a lawful order, false official statement, and two specifications unauthorized absence.  On 31 March 2004, you went to NJP for the wrongful use of two separate controlled substances: cocaine and methamphetamine/amphetamine.

On 31 March 2004, you were notified that you were being processed for an administrative discharge by reason of misconduct due to: (a) drug abuse, (b) the commission of a serious offense, and (c) a pattern of misconduct.  You elected to waive your rights to consult with counsel and to present your case to an administrative separation board. In early April 2004, you underwent an evaluation for substance abuse, and you expressly declined to be enrolled in the Veteran’s Administration (VA) Drug and Alcohol Program in conjunction with your discharge. Ultimately, on 29 May 2004, you were discharged from the Navy 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,” 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.”

A qualified military mental health provider (MHP), reviewed your contention that you suffered from depression and the available records, and provided the Board an AO dated 10 July 2019. The MHP 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 suffered during service.

The Board carefully weighed all potentially mitigating factors in your case, including your contentions that you were under a lot of stress and depression due to Operation Enduring Freedom, and that you are trying to better your family and yourself. Unfortunately, the Board found that your contentions and mitigating factors were not sufficient to warrant any relief in your case given the overall seriousness of your drug use.

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. The Board observed that you did not submit any clinical documentation or post-service treatment records to support your mental health claims despite a request from Board on 30 April 2019 to specifically provide additional documentary material. 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. The Board noted that you were offered VA drug rehabilitation treatment but refused it.

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 determine whether to grant relief. However, even in light of the USD Memo, the Board concluded that, given the totality of the circumstances and your drug-related misconduct, your request does not merit relief.

Lastly, regarding your request to change the primary specialty listed on block 11 of your DD Form 214, the Board does not address requests to make minor clerical corrections or administrative errors to records or documents unless you have been separated from the service 62 years or longer. Navy Personnel Command has cognizance over requests to change records less than 62 years old.  You may send your request with supporting evidence to the following address: Commander, Navy Personnel Command (Code PERS-312), 5720 Integrity Drive, Millington, TN 38055-3120.

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,