DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No. 9158-18 Dear 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. 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 31 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 together with all material submitted in support thereof, relevant portions of your naval record, a 12 August 2019 Advisory Opinion (AO) from a Navy mental health provider, and applicable statutes, regulations and policies. On 4 June 2019, the Board wrote you requesting additional medical or clinical evidence from you in support of your claim, and received no response. The AO was provided to you on 16 August 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 on 14 December 1999. You completed recruit training in February 2000 and reported to the on 26 July 2000. On 19 September 2000, you went to non-judicial punishment (NJP) for the wrongful use of a controlled substance (cocaine) and unauthorized absence (UA). On 10 October 2000, you went to a summary court-martial (SCM) for possessing a false official pass, breaking restriction, and for eight specifications of UA. On 19 October 2000, you were psychologically screened and determined not to meet the criteria for substance abuse or dependency. On 29 November 2000, you were notified that you were being processed for administrative separation from the naval service by reason of misconduct due to drug abuse and the commission of a serious offense. You elected to waive in writing your rights to consult with counsel, submit statements to the separation authority, and to present your case to an administrative discharge board (ADB). Your commanding officer (CO) recommended that you be separated with an other than honorable (OTH) characterization of service. On 9 January 2001, the separation authority agreed with your CO’s recommendation and directed your OTH discharge for misconduct. On 17 January 2001, you were so discharged. 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.” As part of the review process, a Navy military mental health provider (MHP), reviewed your request and provided the Board with the 12 August 2019 AO. 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 fell into depression while serving in the Navy and still suffer from it, that you volunteered to tutor children to deal with your depression, that you are not able to benefit from any Veterans Administration (VA) programs, that you love the Navy and were hoping to find a brotherhood but that did not happen, that you are currently taking Duloxetine for depression, and that you never had an issue with depression before entering the Navy. However, the Board found that your contentions and mitigating factors were insufficient to warrant relief in your case given the overall seriousness of your drug use and other misconduct on active duty. 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 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 also 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 4 June 2019 to specifically requesting such material. 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, under the totality of the circumstances, the Board determined that there was no probable material error or injustice in the discharge. 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, 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.