DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 1891-19 9182-15 3152-14 Ref: Signature Date This letter is in reference to your reconsideration request dated 11 February 2019. You previously petitioned the Board for Correction of Naval Records (Board) and were advised that your application had been disapproved. Your case was reconsidered in accordance with Board procedures that conform to Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004). After careful and conscientious consideration of the entire record, the 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 23 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, an Advisory Opinion (AO) from a Navy mental health provider, materials submitted in rebuttal to the AO, 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 2 January 1990. On 24 May 1990, you went to non-judicial punishment for two (2) specifications of unauthorized absence (UA). On 29 June 1990, you went to NJP for UA and incapacitation for duty. On 24 October 1991, you were evaluated for alcohol abuse/dependence and medical personnel recommended Level II rehabilitation treatment. On 25 November 1991, medical personnel reevaluated you and determined that you were not alcohol dependent at such time. Medical personnel recommended Level II treatment, but if an opening was available that you should be placed in Level III inpatient treatment. On 11 December 1991, you went to NJP for UA lasting over one (1) day. On 9 January 1992, you were reevaluated and medical personnel determined that you were not alcohol dependent and recommended Level II rehabilitation treatment. On 12 March 1992, you went to NJP for two (2) specifications of UA. On 15 March 1992, you were identified as an alcohol abuser and/or alcohol dependent and ordered to participate in command-sponsored Level I treatment to include mandatory “AA” meetings to be followed byLevel II treatment and a 52­week aftercare program. That same day, you were warned in writing that any failure to follow this order may result in a violation of the UCMJ Article 92 and subject you to disciplinary action and administrative separation. On 30 April 1992, you failed a competency for duty examination due to alcohol consumption. On 17 June 1992, you went to NJP for UA lasting eight (8) days, and incapacitation for duty. On 17 July 1992, you failed another competency for duty examination due to alcohol consumption. That same day, you went to NJP for UA due to missing 21 restricted musters, insubordinate conduct toward a commissioned officer, and incapacitation for duty. On 21 July 1992, you were notified that you were being processed for an administrative discharge by reason of misconduct due to the commission of a serious offense, misconduct due to a pattern of misconduct, and for being an alcohol rehabilitation failure (due to engaging in an alcohol-related incident while currently in treatment). The underlying basis for misconduct due to a serious offense was based, in part, on your civilian DUI conviction in addition to your qualifying serious military offenses. You elected to waive in writing your right to consult with counsel and present your case to an administrative separation board. Prior to your discharge, you attended Level III inpatient alcohol rehabilitation treatment at government expense. Ultimately, on 23 October 1992, despite your Commanding Officer recommending a general (under honorable conditions) characterization, the Bureau of Naval Personnel directed that you be discharged from the Navy with an other than honorable (OTH) characterization of service for misconduct. On 13 July 2000, the Naval Discharge Review Board determined that your discharge was equitable and proper as issued and no change was warranted. The fact that your case potentially raised mental health concerns 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.” As part of the review process, the Board Mental Health Provider (MHP), who is a medical doctor and Fellow of the American Psychiatric Association, reviewed your contentions and the available records and issued an AO dated 6 March 2020. The MHP noted that your in-service clinical and personnel records failed to reveal any evidence of in-service mental health symptoms or conditions other than an escalating alcohol use disorder. The MHP concluded by stating there is insufficient evidence of a service-connected mental health condition that may have mitigated your misconduct. The Board carefully weighed all potentially mitigating factors, such as your contentions that include but were not limited to: (a) your chain of command made a series of errors of discretion by not properly diagnosing you as being alcohol dependent earlier in your career, (b) such errors of discretion exacerbated your alcohol abuse and subsequent misconduct, (c) your post-service actions prove you have completely turned your life around after receiving treatment for your alcoholism and have become a pillar in your community, (d) rather than attempting to treat you, your command repeatedly punished you for your misconduct, (e) that you should have been properly diagnosed and treated for alcohol abuse as early as February 1991 rather than being allowed to continue to fall deeper into addiction, (f) if you had been properly diagnosed and treated for alcohol dependence you would have been able to overcome your alcohol issues and honorably serve in the Navy, (g) that you have lost job opportunities and experience tremendous shame and humiliation from having an OTH discharge, and (h) that having your discharge upgraded would relieve the mental and emotional burden of having an OTH. 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 your contentions about any traumatic or stressful events you experienced and their possible adverse impact on your service. However, even under the liberal consideration standard, the Board concurred with the AO and concluded that there was insufficient evidence that you suffered from any type of mental health condition, or that any such mental health condition was related to or mitigated the misconduct that formed the basis of your discharge. The Board also determined, contrary to your contentions, that your command did not commit any discretionary errors in the handling of your misconduct and alcohol-related issues. Rather, the record reflects that your command was actively engaged throughout your enlistment and you were evaluated by either the Command Drug and Alcohol Abuse Program counselor, Counseling and Assistance Center professionals, and/or Navy medical personnel multiple times. The Board determined that your command took adequate and timely treatment steps to assist you with your alcohol problem to put you on a path to recovery. The Board also observed the record shows you were notified of and waived your procedural rights in connection with your administrative separation. In doing so, you gave up your first and best opportunity to advocate for retention or a more favorable characterization of service. Additionally, 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. Lastly, there is no provision of federal law or in Navy/Marine Corps regulations that provides for a discharge to be upgraded based solely on the passage of time or good post-service conduct. 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 an OTH 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. You have now attempted on three separate occasions to upgrade your discharge without relief. It is regretted that the circumstances of your reconsideration petition 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 the absence of new matters for reconsideration, the decision of the Board is final, and your only recourse would be to seek relief, at no cost to the Board, from a court of appropriate jurisdiction. 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.