DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 9481-18 Ref: Signature Date This is in reference to your application of 25 May 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 together with all material submitted in support thereof, relevant portions of your naval record, an Advisory Opinion (AO) from a mental health provider, and applicable statutes, regulations and policies. You enlisted in the Navy and began a period of active service on 22 February 1990. On your pre-enlistment medical paperwork, you expressly denied any mental health issues and denied receiving any mental health treatment. Your pre-enlistment physical was also negative for any psychiatric or neurologic abnormalities. Additionally, you denied using marijuana, both currently and prior to enlisting. You also signed the drug and alcohol abuse statement of understanding where you acknowledged that: (a) drug abuse is against the law and violates Navy standards of behavior and performance and will not be tolerated, (b) the illegal or improper use of marijuana and other controlled substance endangers your health and the safety of your shipmates, and (c) if you illegally use or possess drugs, including marijuana, that appropriate disciplinary and administrative action may be taken against you. While still in recruit training, on 9 April 1990 you were dropped from the Nuclear Power Field Program (NPFP) for using marijuana on multiple occasions. Subsequently, you signed a “Page 13” counseling sheet acknowledging that you were not qualified for the NPFP due to a failure to meet the minimum eligibility requirements. Your record reflects a “Page 6” record of unauthorized absence for one day, which was added to the end of your enlistment. On 24 July 1995, you went to non-judicial punishment (NJP) for substance on board the USS . On 25 July 1995, you were notified of an administrative action to separate you from the naval service for drug abuse as evidenced by all drug abuse incidents in your current enlistment. You elected to waive in writing your right to consult with counsel and present your case to an administrative separation board. On your election of rights form you did not object to your separation. Ultimately, on 11 September 1995, you were discharged from the Navy with an Other Than Honorable (OTH) characterization of service. Your contention that you suffered from multiple mental health conditions 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 military mental health provider (MHP) who is a licensed clinical psychologist, reviewed your contentions and the available records, and provided the Board an AO dated 4 April 2019. The MHP noted that you do have diagnoses of mental health conditions, but there is no evidence beyond your own statement that you were experiencing such mental health conditions during your military service. The MHP further noted that the traumatic incident resulting in your post-traumatic stress disorder (PTSD) diagnosis was a car accident experienced by you in 2011, and that the clinical information submitted does not describe mental health symptoms predating the car accident. The MHP concluded by opining that there is insufficient evidence that your mental health conditions are service-connected, and there is insufficient evidence that your misconduct should be attributed to a mental health condition. The Board carefully weighed all potentially mitigating factors in your case, such as your contentions that included, but were not limited to: (a) you suffered from a generalized anxiety disorder and major depressive disorder at the time of your service, each of which being PTSD-related conditions that were aggravated by the stressful working conditions you faced throughout your service, (b) your mental health conditions led you to use marijuana as a way to self-medicate, (c) your mental health conditions should mitigate or even excuse your directly-related and minor misconduct, (d) you had been using marijuana as a means to self-medicate a number of mental health conditions that had pre-existed your Naval service, but were significantly aggravated by service-related stressors you faced, (e) that liberal consideration should create a presumption in favor of an upgrade, (f) if other forms of psychological help been made available and not stigmatized, you likely would not have engaged in self-medication at all, and (g) that the relative severity of your misconduct involving marijuana has changed over time and is viewed as less severe today. 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 credible evidence that you suffered from any type of mental health conditions or PTSD 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 also observed that you did not submit any pre-service or active duty clinical documentation or treatment records to support your mental health claims. Further, the Board was troubled by the inconsistency between your contention that you suffered from pre­service mental health conditions, with the fact that you expressly denied having any mental health issues on your pre-enlistment medical history documents. Additionally, 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, the Board determined that even under the liberal consideration standard that there was insufficient evidence to establish the existence of probable material error or injustice in your 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 still concluded that, given the totality of the circumstances and your drug-related misconduct, 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, 1/29/2020