Docket No: 11727-19
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 you did not file your application in a timely manner, the statute of limitation was waived in accordance with the 25 August 2017 guidance from the Office of the Under Secretary of Defense for Personnel and Readiness (Kurta Memo).  A three-member panel of the Board, sitting in executive session, considered your application on 12 April 2021.  The names and votes of the panel members 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, including the Kurta Memo, the 3 September 2014 guidance from the Secretary of Defense regarding discharge upgrade requests by Veterans claiming post-traumatic stress disorder (PTSD) (Hagel Memo), and the 25 July 2018 guidance from the Under Secretary of Defense for Personnel and Readiness regarding equity, injustice, or clemency determinations (Wilkie Memo).  The Board also requested and reviewed a 5 February 2021 advisory opinion (AO) from a mental health professional, a copy of which has been provided to you, and to which you provided a rebuttal. 
 
You enlisted in the Navy on 3 January 1978.  On 19 January 1979, you received nonjudicial punishment for being absent from your appointed place of duty.  You completed your enlistment under an early release program and received an honorable discharge on 18 December 1980.  On 23 July 1981, you reenlisted in the Navy.  In 1982, you petitioned this Board concerning correcting the date of your advancement to Radioman Second Class.  The Board granted your petition.  On 2 May 1984, you received nonjudicial punishment for using marijuana.  That day you were also provided a written warning concerning your use of marijuana.  On 8 July 1984, you received a warning concerning the Navy’s “zero tolerance” policy towards the use of illegal drugs.  On 22 January 1986, you received nonjudicial punishment for using provoking gestures and for assault.  On 4 March 1986, you commenced a period of unauthorized absence and you surrendered to military authority on 10 March 1986.  On 13 March 1986, you received nonjudicial punishment again for your use of an illegal substance as well as for unauthorized absence.  On 14 March 1986, you were notified of the initiation of administrative separation processing, and your rights in connection therewith.  You waived your right to an administrative separation board, and on 31 March 1986, your commanding officer recommended that you be discharged with an other than honorable characterization of service.  In his letter of transmittal to the separation authority, your commanding officer explained that you had been counseled several times by your division officer and department head concerning the consequences of your drug use.  On 7 May 1986, while awaiting discharge, you received nonjudicial punishment again for using marijuana.  On 22 April 1986, you were evaluated by a medical officer and it was determined that you were not physically dependent on drugs.  On 30 April 1986, the discharge authority directed that you be discharged with an other than honorable characterization of service, and on 16 May 1986, you were so discharged. 
 
In 2004, you petitioned this Board seeking an upgrade to your discharge characterization.  The Board carefully reviewed your contentions and mitigating factors, including the length of time that passed since you were discharged from the Navy, your prior period of honorable service, and your contention that you were not offered drug treatment.  On 21 January 2005, the Board denied your petition, reasoning that your contentions were not sufficient to warrant a re-characterization of your discharge due to your use and possession of drugs and other misconduct that resulted in three nonjudicial punishments and that, with respect to your contention that you were not offered drug abuse treatment, the record showed that you were found not to be drug dependent by a medical officer.   
 
The Board carefully considered all potentially mitigating factors in your current petition to determine whether the interests of justice warrant relief in your case including in accordance with the Kurta and Wilkie Memos.  These included, but were not limited to, your contentions that: (a) as a child, you witnessed your mother being physically abused by your alcoholic father, and that your traumatic childhood was a factor in your later use of marijuana as a means of self-medication; (b) you did not have an opportunity to learn better coping mechanisms and as a result you struggled with a lifelong addiction; (c) you had a successful initial enlistment in the Navy, and your trouble began when you learned you were having a child and re-enlisted in the Navy; (d) you were stationed in Guam, and it followed that you learned that your wife was becoming unfaithful, and this caused you tremendous trauma and emotional pain, which drove you to despair; (e) additional difficult circumstances occurred that interfered in your relationship with your wife, including that her mother dying of heart disease, your wife obtaining a tubal ligation while you were stationed away from home, your wife moving and depriving you of the ability to see your children; (f) through this emotional turmoil you used alcohol and marijuana to alleviate your despair; and (g) eventually you received your discharge, and post-discharge you have sought treatment for your use of illegal substances and have been drug free since 1993. 
 
In connection with your contentions, the Board considered the 5 February 2021 AO.  In preparing the AO, the mental health professional reviewed all of your contentions as well as the evidence that you provided in support of your petition.  You were provided a copy of the report, and you provided a rebuttal to the report.  The Board carefully reviewed all of the materials that you presented.  The AO found as follows: 
 
Petitioner’s previous application to the Board cited failure to offer drug treatment as a mitigating factor for discharge upgrade.  He was evaluated and found not to be drug dependent during his military service.  Regarding a mental health condition, Petitioner’s in-service record revealed one contact in November of 1985 for stress issues relating to his family.  He was not diagnosed with a mental health condition, “healthy adjustment reaction to family stress”, and it was noted he did not endorse vegetative signs of depression. He was encouraged to return should he feel he needed additional services.  There is no indication Petitioner returned for follow up. Petitioner did not present any evidence of a post-discharge mental health diagnosis. He did describe post-discharge substance use treatment and subsequent sustained sobriety. 
 
Petitioner’s in-service records do not contain evidence of a diagnosis of a mental health condition or psychological/behavioral changes, which may have indicated a mental health condition.  Although Petitioner did consult with medical/mental health regarding his family stressors, his reported symptoms did not meet the criteria for a mental health diagnosis. 
 
The AO concluded, “[b]ased on the available evidence, it is my considered medical opinion the preponderance of available objective evidence fails to establish Petitioner was diagnosed with a mental health condition, suffered from a mental health condition at the time of his military service, or his inservice misconduct could be attributed to a mental health condition.” 
 
You submitted a written rebuttal, which contained several exhibits, in which you argued that the AO failed to consider the specific facts of your military service, including that the AO ignored the evidence that you exhibited significant psychological and behavioral changes during your second enlistment as a result of your deteriorating mental health, which directly resulted in your misconduct.  This was exemplified by the fact that your performance marks suffered a marked decline in the latter part of your second enlistment.  You also argued that the AO failed to give liberal consideration to the available evidence that you provided, in contravention of the Kurta Memo. 
 
Based upon its review, the Board concluded the potentially mitigating factors you raised were insufficient to warrant relief.  The Board found that the frequency and variety of the misconduct that you engaged in while in the Navy outweighed the evidence that you provided in support of your petition.  The Board observed that you were afforded considerable clemency while you were on active duty.  You were not processed for administrative separation on your first demonstrated use of marijuana.  Rather, you received at least two written warnings explaining to you the negative consequences of your continued use of drugs.  In addition, each of your nonjudicial punishments would have included a hearing before your commanding officer at Captain’s Mast, during which you were verbally counseled by the highest authority at your command.  In his transmittal letter to the separation authority, your commanding officer explained that you had received verbal counseling from both your division office and your department head.  You persisted in your use of illegal drugs despite these several clear warnings.  The Board also credited the finding of the AO, which opined that you did not meet the criteria for a mental health condition at the time of your military service that would mitigate your in-service misconduct.   
 
The Board also considered the clemency factors as set forth in the Wilkie Memo, and found that, other than noting that you have been drug free since 1993, you did not provide evidence or documentation demonstrating that your post-service conduct and achievements warranted a re-characterization of your discharge characterization.  The Board credited you for continuing to live a drug free life as well as your persistence through heart ailments and relationship issues.  Should you reapply, the Board will consider your new matter including post-service achievement factors in the context of you service record and discharge characterization. 
 
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,