Docket No: 11207-19 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 for Correction of Naval Records, sitting in executive session, considered your application on 13 November 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. 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 Navy on 24 September 2008 at the age of seventeen. Following completion of initial recruit training you reported for duty on board the . On 25 November 2009 you received non-judicial punishment (NJP) for the drunken/reckless operation of a vehicle on base (DUI) and for two specifications of failing to obey a lawful order (underage drinking and possessing drug paraphernalia). You did not appeal your punishment. Following your NJP, on 15 December 2009 you were notified that you were being processed for an administrative discharge by reason of misconduct due to the commission of a serious offense and for misconduct due to drug abuse. You elected to exercise your rights to consult with counsel and to present your case to an administrative separation board (Adsep Board). On 30 March 2010 an Adsep Board convened in your case. At the Adsep Board you were represented by civilian counsel and a Navy Judge Advocate. Following the presentation of evidence and witness testimony, the Adsep Board members unanimously determined that you the committed misconduct as charged. Subsequent to the misconduct finding, the Adsep Board members recommended that you be separated from the naval service with an other than honorable (OTH) characterization of service, but voted to suspend the separation for twelve months. On 1 May 2010 your commanding officer concurred with the Adsep Board findings and recommendations except he recommended the disapproval of your suspended separation. Ultimately, Navy Personnel Command approved and directed your separation, and on 1 June 2010 you were discharged from the Navy with an OTH characterization of service and assigned an RE-4 reentry code. The Board carefully weighed all potentially mitigating factors, such your contentions that included, but were not limited to: (a) the Navy failed in its responsibility and duty to respect and protect you; (b) your superiors created the environment where you would, and did, get into trouble and then discharged you when you inevitably did what they encouraged you to do; (c) the Navy should have, in accordance with its regulations, properly supervised you and assisted you in getting treatment you required for alcohol once the Navy failed and abdicated its duty to properly supervise you, and convene a medical board if you had recurrent and systematic alcohol issues; (d) the Navy failed in its responsibility and duty to respect and protect your rights by conducting an incomplete and factually flawed investigation into whether or not you were mentally or psychologically impaired prior to enlistment; and (e) rather than take appropriate action, your chain of command ruined your life for their failures. Unfortunately, the Board concluded these mitigating factors and contentions were not sufficient to warrant setting aside your discharge or granting any other requested relief. In reviewing your contentions, the Board found insufficient support for your claims. Additionally, the Board noted that the evidence of record did not demonstrate that you were not mentally responsible for your conduct or that you should not be held accountable for your actions. Further, the Board noted that your pre-enlistment physical exam and medical history noted no neurologic or psychiatric conditions or symptoms. Moreover, even under the liberal consideration standard, the Board concluded that there was no convincing evidence indicating 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 noted that, although one’s service is generally characterized at the time of discharge based on performance and conduct throughout the entire enlistment, the conduct or performance of duty reflected by only a single incident of misconduct may provide the underlying basis for discharge characterization. The Board determined that even though flawless service is not required for an honorable discharge, in your case an OTH was still appropriate. Further, the Board determined that characterization under OTH conditions is generally warranted for misconduct and is appropriate when the basis for separation is the commission of an act or acts constituting a significant departure from the conduct expected of a sailor. The Board did not believe that your record was otherwise so meritorious as to set aside your discharge and determined that sailors should receive no higher discharge characterization than is due. The Board also considered your post-service accomplishments, but ultimately concluded your misconduct still warranted an OTH characterization. The Board also noted that there is no provision of federal law or in Navy regulations that allows for a discharge to be automatically upgraded after a specified number of months or years. Lastly, absent a material error or injustice, the Board generally will not summarily upgrade a discharge solely for the purpose of facilitating VA benefits, or enhancing educational or employment opportunities. Accordingly, the Board determined that there was no impropriety or inequity in your discharge, and even under the liberal consideration standard, the Board concluded that your misconduct and disregard for good order and discipline clearly merited your receipt of an OTH. The Board also 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 (BCM/NR) “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, 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 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,