DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 8936-18 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. A three-member panel of the Board, sitting in executive session, considered your application on 23 March 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, as well as applicable statutes, regulations, and policies. In addition, the Board considered the 17 June 2019 advisory opinion (AO) furnished by a Navy mental health professional, which was previously provided to you, and the 23 July 2019 AO, which is enclosed. Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to their 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 Navy and began a period of active duty on 20 February 1974. On 27 October 1975, you received nonjudicial punishment (NJP) for 12 days of unauthorized absence. On 16 June 1976, you received NJP for sleeping on post. On 30 July 1976, you were convicted at summary court-martial (SCM) of possession of marijuana. On 31 July 1976, a drug exemption was not granted due to your SCM conviction. On 8 September 1976, you were notified of administrative discharge action for misconduct due to drug abuse. You signed an agreement with your commanding officer that he would recommend you receive a general discharge, and you would waive your right to have your case heard before an administrative discharge board. On 9 September 1976, a Disposition Recommendation to the separation authority stated, in part, that you were not drug dependent, did not require rehabilitation, were unwilling to take responsibility for your own actions, and preferred to blame your problems on external sources, like the “Navy.” Your drug usage appeared to have stemmed from your desire to escape the stress you experienced in daily living in the Navy. Your potential and motivation for rehabilitation was considered to be poor. It was recommended that you be administratively separated from the Navy. On 13 September 1976, your case was forwarded to the separation authority recommending that you receive a general discharge. On 23 September 1976, the separation authority directed that you be separated from the Navy for misconduct due to drug abuse with a general characterization of service. On 17 September 1976, you received a general discharge. You request an upgrade of your characterization of service on the basis that you suffered from a mental health condition during your military service. 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.” A Navy mental health professional further reviewed your request for correction to your record and provided the Board with an AO regarding your assertion that you were suffering from a mental health condition during your service. The AO noted that in your discharge physical, you denied any mental health symptoms, including depression, excessive worry, trouble sleeping or nervous trouble of any sort. In your current request for review, you submitted a personal statement that you were struck by a car during your military service, which resulted in the physical and mental ailments, which led to your discharge. You also submitted a Department of Veterans Affairs (VA) disability determination letter granting 70% disability rating for service-connected anxiety reaction with conversion features. You submitted two letters of support from Shipmates affirming that you were in a car accident during your military service. You have a mental health disorder that the VA has determined is attributed to military service. However, there is less evidence that your misconduct can be attributed to your mental health condition. Your first NJP occurred prior to the car accident, so it cannot be attributed to an anxiety disorder incurred following the car accident. It is possible that your marijuana use may be attributed to an attempt to self-medicate for anxiety, but you denied experiencing mental health symptoms upon discharge. Additional post-service medical records describing the history and specific link between your mental health symptoms and your misconduct are required to render an alternate opinion. At this time, based on the preponderance of the evidence, there is insufficient evidence to attribute your misconduct to your mental health condition. On 23 July 2019, an updated AO states you submitted a personal statement and a 1995 VA neuropsychological evaluation, which noted that the pattern of response was consistent with a diagnosis of Attention Deficit Hyperactivity Disorder (ADHD). You submitted your father’s death certificate, a statement of support from a fellow Sailor who was also struck by the car, and excerpted VA treatment records listing a diagnosis of atypical major depressive disorder (depression and anxiety secondary to medical condition; with somatoform features), pain syndrome, and polysubstance dependence (alcohol, marijuana, hallucinogens in full remission x7 years). Additionally, you submitted letters of support from family and friends and clinical information indicating that you have a diagnosis of ADHD, which you likely also experienced during your military service. However, it was still determined that there is insufficient evidence to attribute all of your misconduct to a mental health condition and concurred with the original advisory opinion. The Board carefully weighed all potentially mitigating factors, such as your record of service, desire to upgrade your discharge, and that you were struck by a car during your military service, which resulted in the physical and mental ailments that led to your discharge. The Board also considered your assertions that you strongly feel that much of your active duty actions that resulted in a general discharge were the result of immaturity, depression, anxiety, alcoholism, and PTSD from a vehicular accident that caused significate injury to your body and mind. The Board concluded these factors and assertions were not sufficient to warrant an upgrade in the characterization of your discharge given your misconduct, which resulted in two NJPs and SCM conviction for drug possession. Further, the Board concurred with statements in both AOs that, based on the preponderance of the evidence, there is insufficient evidence to attribute your misconduct to your mental health condition. 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, 4/18/2020 Enclosure