DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 8983-18 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 12 December 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 20 June 2019 advisory opinion (AO), which you previously received, your rebuttal of 30 July 2019 and 16 August 2019, as well as applicable statutes, regulations and policies. 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 Marine Corps on 23 June 1986. On your pre-enlistment medical history, you denied having any psychiatric/neurologic abnormalities, including depression or trouble sleeping. On 29 June 1987, you received a NAVMC 118(11) (Page 11) written counseling warning for substandard performance of sentry duty by leaving the boundaries of your post without proper authority. On 7 August 1987, you received a Page 11 entry documenting an accident with a government vehicle and the revocation of your driving privileges. On 12 August 1987, you went to non-judicial punishment for writing multiple checks without sufficient funds. On 7 February 1988, you received a Page 11 warning for violating an order by possessing alcohol in your wall locker. In October 1988, you underwent a mental health evaluation due to complaints and frustration with your work situation as well as family concerns. You were not diagnosed with any psychiatric mental health disorder and only determined to be experiencing an adjustment disorder. Your command referred you for a substance abuse evaluation after testing positive for cocaine. You admitted that you had used cocaine on three separate occasions. You were diagnosed with alcohol abuse and drug abuse, but not determined to be drug or alcohol dependent. On 17 May 1989, you submitted a voluntary written request for a separation in lieu of trial by court-martial for the following offenses: three separate specifications of unauthorized absence (UA) when you failed to go to your appointed place of duty, the willful disobedience of a superior commissioned officer, and for the wrongful use of a controlled substance (cocaine). Prior to submitting this discharge request, you conferred with a qualified military lawyer, at which time you were advised of your rights and warned of the probable adverse consequences of accepting such a discharge. As a result of this course of action, you were spared the stigma of a court-martial conviction, as well as the potential sentence of confinement and a punitive discharge. On 8 June 1989, you were separated from the Marine Corps with an other than honorable (OTH) discharge. Following your OTH discharge, in January 1990 you were convicted of felony cocaine distribution. Your contention that you suffered from anxiety and depression on active duty following your duty station transfer from Japan to Quantico, Virginia 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 Medical Officer who is a qualified mental health provider (MHP) also reviewed your request for correction and provided the Board the 20 June 2019 AO. The MHP concluded that there is insufficient evidence to attribute your misconduct to a service-connected mental health condition. This opinion is consistent with the Veterans Administration’s (VA) Rating Decision issued on 14 November 2016. The VA denied any service-connection for depression. The VA noted that your records did not indicate any event, disease, or injury in service, and your service medical records did not contain any complaints, treatment, or diagnosis for depression. The Board carefully weighed all potentially mitigating factors, such your contentions that included, but were not limited to: (a) following your transfer to your new duty station in Quantico, Virginia, you suffered from anxiety and depression prior to your positive urinalysis, and your discharge should be reevaluated in light recent policy clarifications and guidance, (b) your discharge is inequitable because it failed to account for your participation in a Naval Investigative Service (NIS) criminal investigation, (c) your request for a discharge in lieu of trial by court-martial is not an admission of guilt, (d) the investigative file related to your positive urinalysis and your participation in an NIS investigation is missing from your military records, thus negating the presumption of regularity in the conduct of governmental affairs, (e) your OTH discharge is inequitable in light of your laudable service and post-service conduct, (f) that you believe that you were suffering from depression symptoms prior to entering the military, (g) that your drug use was a result of self-medication to treat your depression, and (h) your lack of medical records from the time just after your discharge was due to your homelessness and lack of health insurance. Unfortunately, the Board found that your contentions and mitigating factors were not sufficient to warrant upgrading your discharge or granting any other relief in your case. Following 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 insufficient evidence that you suffered from any type of mental health-related conditions while on active duty, or that any such mental health conditions were related to or mitigated the misconduct that formed the basis of your discharge. The Board noted that you denied experiencing any mental health issues on your pre-enlistment paperwork. The Board also noted, contrary to your contentions, that your discharge request in lieu of a court-martial is an admission of guilt. The plain language of the request admits your guilt: “This request…is based upon my commission of following offenses…,” and “I do not believe that further service would be in the best interests of myself or the U.S. Marine Corps, since I am guilty of the offenses as alleged and substantiated by the evidence.” Additionally, your OTH was based on a written request to avoid a trial by court-martial for certain criminal offenses. Any cooperation with law enforcement authorities was not included in the character of your discharge request. Your discharge request states: “I understand that my separation from the Naval Service, effected by acceptance of this request, will be with a discharge under other than honorable conditions.” Moreover, the lack of records detailing your asserted NIS cooperation does not rebut the presumption of regularity of governmental affairs. To the contrary, your own 2017 NIS FOIA request results demonstrated that a database search of all relevant NIS files resulted in no records pertaining to your claimed NIS cooperation. Such negative results suggests that your NIS cooperation was either insufficient for documentation, or that any such records were destroyed following NIS records management policy after 15 years. Notwithstanding, the Board found not sufficiently supported that you provided NIS cooperation related to your three UA charges or your drug use. Accordingly, the Board determined that there was no material error or injustice in your discharge, and concluded that your serious misconduct merited your receipt of an OTH. 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, including any arrests or convictions. However, even in light of the USD Memo, the Board still concluded that, given the totality of the circumstances, 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,