DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No. 10204-19 Ref: Signature Date This letter is in reference to your reconsideration request dated 20 September 2019. You previously petitioned the Board for Correction of Naval Records (Board) and were advised that your application had been disapproved. Your case was reconsidered in accordance with Board procedures that conform to Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004). After careful and conscientious consideration of the entire record, the 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 for Correction of Naval Records, sitting in executive session, considered your application on 30 January 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 and applicable statutes, regulations and policies. In addition, the Board considered the advisory opinion contained in BUMED letter 5740 Ser M34/17UM34372 of 20 November 2017; an opinion previously provided to you as part of your last application. The Board carefully considered your arguments that you deserve to have your non-judicial punishment set aside with restoration of paygrade and pay. You also assert that you deserve a change to your narrative reason for separation to disability with associated changes to your reentry code, payment for completion of a five-year enlistment and travel entitlements. Unfortunately, the Board disagreed with your rationale for relief. First, despite applying liberal consideration to the facts of your case, the Board concluded you were criminally responsible for wrongfully using a controlled substance. The evidence shows you were non-judicially punished 21 February 2013 on after you were found to have possessed and used spice, a controlled substance. Based on your documented misconduct, the Board concluded the preponderance of the evidence supports a finding that you committed the misconduct that formed the basis for your non-judicial punishment. Absent evidence that shows you did not commit the misconduct or were not mentally responsible for your actions, the Board felt it inappropriate to set aside the non-judicial punishment or restore your paygrade and forfeitures even with liberal consideration based on your diagnosed mental health condition. The Board also considered your post­discharge good character in making their determination. However, they concluded this was insufficient mitigation evidence to set aside the basis for your administrative separation from the Navy. Second, the Board concluded you were not entitled to disability processing based on your misconduct processing. Military disability regulations directed misconduct processing to supersede disability processing. So even if there was evidence you were unfit for continued naval service at the time of your discharge, your drug related misconduct would have taken precedence over disability processing. Since the Board determined you were responsible for the misconduct and did not disturb the non-judicial punishment findings that formed the basis for your administrative separation, they determined your narrative reason for separation, along with your reentry code, remains appropriate. Third, based on the Board’s earlier findings, they also concluded you are not entitled to back pay, service credit, or separation travel entitlements since your military record is correct. Finally, as previously mentioned, the Board applied liberal consideration to the facts of your case based on the mental health conditions you exhibited at the time of your discharge. However, the Board felt you received the benefit of mitigation associated with your mental health condition when you were assigned a General characterization of service for misconduct that typically resulted in an Other than Honorable characterization of service. This was one of the factors considered by the Board in denying your request to set aside your non-judicial punishment. While the Board was pleased with your post-discharge accomplishments, they found insufficient evidence of error or injustice to warrant a change to your record. It is regretted that the circumstances of your reconsideration petition 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 the absence of new matters for reconsideration, the decision of the Board is final, and your only recourse would be to seek relief, at no cost to the Board, from a court of appropriate jurisdiction. 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, 2/7/2020