DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 

Docket No. 11623-19 
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 case on its merits.  A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 13 February 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.
  
A review of your record shows that you entered active duty with the Navy on 1 April 1997 on a drug waiver.  On 4 January 2000, you were diagnosed with major depressive disorder, single episode, moderate but determined to be psychiatrically fit for full duty.  Non-judicial punishment was imposed on you for wrongful use of marijuana on 25 February 2000 leading to your administrative separation for misconduct on 12 April 2000 with an Other than Honorable characterization of service.  On 13 August 2014, the Naval Discharge Review Board (NDRB) denied your request for an upgrade to your characterization of service.  You provided a 2 December 2019 letter from your medical provider documenting a current diagnosis of major depressive disorder, single episode, moderate and Post-Traumatic Stress Disorder.  The letter documents previous treatment in 2008 and 2016 in addition to current treatment that commenced in 2017.
 
The Board carefully considered your arguments that your narrative reason for separation should be changed to disability.  You argue you were unfit for continued naval service in 2000 due to your mental health conditions when you were discharged for misconduct.  Unfortunately, the Board disagreed with your rationale for relief.  First, the Board determined the preponderance of the evidence does not support a finding that you were unfit for continued naval service at the time of your discharge due to your mental health condition.  In order to be found unfit for continued naval service, a service member must be unable to perform the duties of their office, grade, rank or rating due to a qualifying disability condition.  In your case, the Board noted you were determined to be psychiatrically fit for full duty in January 2000 despite your mental health diagnosis.  The Board concluded this was strong evidence you were fit for active duty at the time of your discharge since you were declared fit for full duty approximately three months prior to your release from active duty.  Second, the Board concluded you were mentally responsible for your misconduct that formed the basis for your administrative separation.  The Board noted you had a preservice history of marijuana use that predated your mental health diagnosis.  Further, in your NDRB application, you assert that you ingested marijuana unknowingly without any reference to your mental health condition at the time.  Since the Board did not find your innocent ingestion argument supported by any evidence, they concluded you knowingly used marijuana and it was unrelated to your mental health condition.  Based on this finding, the Board also found that you were appropriately processed and discharged for misconduct related to your drug abuse and not eligible for disability processing since military disability regulations direct misconduct processing to superseded disability processing.  Accordingly, the Board found insufficient evidence of error or injustice 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,