DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 1580-19 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 application on its merits. A three-member panel of the Board, sitting in executive session, considered your application on 2 April 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, the 25 September 2019 Advisory Opinion (AO) from a Navy mental health provider, and applicable statutes, regulations and policies. You enlisted in the Navy on 21 March 1989. You previously attempted to enlist in September 1988, but were administratively separated with an uncharacterized entry level separation by reason of moral disqualification for lying about your pre-service drug use. On 15 January 1998, you went to non-judicial punishment (NJP) for the offenses of unauthorized absence, failure to obey a lawful order/regulation, and two specifications of making a false official statement. You received as punishment a suspended reduction in rank. However, on 21 January 1998, a Navy drug laboratory message indicated that you tested positive for cocaine. Accordingly, on 23 January 1998 your Commanding Officer vacated the suspended NJP reduction in rank due to your positive urinalysis and enforced the reduction in rank down to E-4. The command subsequently attempted to take you to NJP for your cocaine use, but you elected your right to be tried by court-martial for this offense. Additionally, between 16 March 1998 and 7 April 1998, you were in an unauthorized absence status. Instead of convening a court-martial, on 11 August 1998 your command notified you that you were being processed for an administrative discharge by reason of misconduct due to the commission of a serious offense and misconduct due to drug abuse. You elected in writing to present your case to an administrative separation (Adsep) board. The Adsep board concluded unanimously that you committed misconduct due to drug abuse and voted to separate you from the Navy. The Adsep board voted 2-1 in favor of you receiving a general (under honorable conditions) (GEN) discharge. Ultimately, on 29 October 1998, you were discharged from the Navy for misconduct with a GEN characterization of service and assigned an RE-4 reentry code. On 5 March 2019, the Department of Veterans Affairs (VA) granted you a revised 50% disability rating for post-traumatic stress disorder (PTSD) effective 14 May 2008, up from a previous 10% rating. The VA noted that you are currently rated at 70% for PTSD commencing on 8 August 2018, but the VA denied your request for a rating in excess of 70%. The VA disability rating decision made no mention of any traumatic brain injury (TBI) and was otherwise silent on the issue. Your current contention that you suffered from PTSD and TBI was fully and carefully considered by the Board in light of the Secretary of Defense's 3 September 2014 memorandum, “Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requested by Veterans Claiming Post Traumatic Stress Disorder,” the 25 August 2017 memorandum, “Clarifying Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modification of their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment,” and the 25 July 2018 memorandum, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations.” A Navy mental health provider (MHP), reviewed your contention that you suffered from PTSD on active duty and provided the Board the AO. The MHP observed that while the VA determined your PTSD diagnosis was service-connected, the MHP noted that there was no additional medical information regarding your mental health condition. The MHP concluded by opining that there is insufficient evidence to attribute your misconduct to a service-connected mental health condition. The Board carefully weighed all potentially mitigating factors, such as your contentions that your discharge should be upgraded due to your diagnoses of PTSD and TBI while on active duty. Unfortunately, the Board determined these mitigating factors and contentions were not sufficient to warrant upgrading your discharge or granting any other relief in your case. In accordance with the published guidance, the Board gave liberal and special consideration to your record of service and to your contentions about any traumatic or stressful events you experienced and their possible adverse impact on your service. However, the Board concluded that there was insufficient evidence: (a) to support a nexus between any PTSD, TBI, and/or PTSD/TBI-related symptoms and your misconduct, or (b) to support the argument that any such mental health conditions or injuries mitigated the misconduct that formed the basis of your discharge. Even under the liberal consideration standard, the Board concluded that your misconduct was not due to PTSD, TBI, or PTSD/TBI-related symptoms. Additionally, other than providing excerpts from the VA rating decision, the Board observed that you did not submit any clinical documentation or treatment records to support any of your mental health claims despite a request from the Board on 26 July 2019 to specifically provide additional documentary material. The Board also noted that VA rating decisions and eligibility determinations for health care, disability compensation, and other VA-administered benefits are for their internal VA purposes only, and that such VA decisions, rulings, and determinations are not binding on the Department of the Navy. Lastly, the Board observed that there is no provision of federal law or in Navy/Marine Corps regulations that allows for a discharge to be automatically upgraded after a specified number of years. Accordingly, the Board determined that there was no probable material error or injustice in your discharge, and concluded that your serious misconduct and disregard for good order and discipline merited your receipt of a GEN discharge. Additionally, the Board 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 “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 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.