DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No. 1042-19 Ref: Signature Date 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 case on its merits. A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 24 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 and applicable statutes, regulations and policies. In addition, the Board considered the advisory opinion contained in BCNR letter Docket No: NR20190001042 of 18 September 2019, a copy of which was previously provided to you for comment. A review of your record shows that you entered active duty with the Marine Corps in November 2005. On 4 July 2006, you suffered an eye injury from a firework that required multiple surgeries to treat. You were medically cleared for full duty on 27 December 2007 but not cleared for deployment. Based on your admission of wrongful drug use, you were notified of administrative separation processing on 18 June 2008. You were subsequently convicted by a summary court-martial for wrongful use of marijuana and cocaine on 30 June 2008. On 12 August 2008, you were discharged for your misconduct with an Other than Honorable characterization of service. You were denied an upgrade to your characterization of service by the Naval Discharge Review Board in October 2017. The Board carefully considered your arguments that you deserve an upgrade to your characterization of service and a change to your narrative reason for separation to disability. You assert that you were treated too harshly for your misconduct based on your attempt to self-medicate, your Post-Traumatic Stress Disorder (PTSD), and the failure of the Marine Corps to refer you to the Disability Evaluation System. Unfortunately, the Board disagreed with your rationale for relief. First, the Board concluded you committed the misconduct that formed the basis for your administrative separation. The Board relied on the summary court-martial conviction and your admission in making this finding. Second, based on your misconduct, the Board concluded you were properly processed for administrative separation for drug abuse. The Board determined the Marine Corps had a legal basis and authority to process you for drug abuse. Third, the Board found your administrative separation for misconduct proper based on your misconduct. Despite the existence of your eye injury or other disability conditions, the Board determined that your misconduct processing and discharge superseded any other type of administrative processing including disability. Fourth, the Board found insufficient evidence that you were unfit for continued naval service for your eye condition, PTSD, or any other disability condition. It relied on the 27 December 2007 medical report that cleared you for full duty. Absent evidence you were unable to perform the duties of your office, grade, rank or rating due to a qualifying disability condition, the Board felt the preponderance of the evidence did not support a finding of unfitness. Fifth, despite applying liberal consideration to your case based on limited evidence of a mental health diagnosis, the Board concluded your characterization of service and narrative reason for separation should remain unchanged. As pointed out in the advisory opinion, the Board felt there was an insufficient nexus between your misconduct and your mental health condition. The Board concurred with this finding. This finding was based on your preservice history of drug abuse that predated the mental health condition that allegedly contributed to your misconduct and the nature of your misconduct, i.e. your substitution of urine to avoid testing positive on the drug tests. In the Board’s opinion, both of these incidents of misconduct did not have a nexus to your mental health condition. Further, even if a nexus existed, the Board also felt that your actions were too serious to be mitigated by your mental health condition. So based on findings discussed above, the Board found insufficient evidence to warrant a change to your record. 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 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, 10/28/2019