DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 2008-19 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, sitting in executive session, considered your application on 9 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, applicable statutes, regulations and policies, as well as the 18 February 2020 advisory opinion (AO) from a Navy mental health professional. You enlisted in the Navy on 28 October 1998. On 12 July 2001, you were convicted by a civilian court of reckless driving and not having a valid inspection or motorcycle license. You were arrested by civilian authorities on 31 July 2001 and subsequently convicted on 9 October 2001 for driving a motorcycle without a license, registration, or inspection. On 29 August 2001, you received nonjudicial punishment for failure to obey a lawful general order by wrongfully driving a motorcycle without completing an approved motorcycle safety course, making a false official statement to military police, wrongfully using marijuana on three occasions, larceny of a Department of Defense decal, and wrongfully using and possessing an official military pass with intent to deceive. Subsequently, you were notified of pending administrative separation action by reason of misconduct due to drug abuse, commission of a serious offense, and civilian conviction. After waiving your procedural rights, your commanding officer recommended you be discharged with an other than honorable (OTH) characterization of service due to misconduct. The separation authority approved this recommendation and directed your OTH discharge due to misconduct. On 13 November 2001, you received an OTH discharge. Your request for a change to your characterization of service was reviewed in consideration of your contention you suffered from a mental health condition. Your request 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 Board’s review, a Navy mental health professional reviewed your request and provided the Board with an AO on 18 February 2020. The AO noted the endorsements for “nervous trouble of any sort,” “nervousness, stress anxiety, loss of appetite,” and “stress that messed me up” on your separation physical but also noted the separation examiner’s evaluation that “none of the mental health symptoms were considered disqualifying.” The AO concluded there was insufficient evidence of a mental health condition attributable to your military service which may have mitigated your misconduct. The AO was provided to you on 18 February 2020, and you were given 30 days in which to submit a response. When you did not respond within 30 days, your case was submitted to the Board for review. The Board carefully reviewed your application, weighed all potentially mitigating factors such as your youth and immaturity and considered your contention that knee surgery caused you “great pain and anxiety” and caused you to be “stressed all the time.” The Board also considered your contention that, after being left behind to convalesce when your ship went to sea, you “started hanging with the wrong people.” You contend that you were easily influenced, and because you “couldn’t get relief from the swelling and pain,” you began smoking marijuana. Further, the Board considered your contention that your post-service record and accomplishments warrant an upgrade to your characterization of service. The Board considered each of the advocacy letters submitted on your behalf. However, the Board concurred with the AO’s determination that there was insufficient evidence in the record to attribute your misconduct and drug abuse to a mental health condition. The Board determined additional post-service records describing your mental health diagnosis and its specific link to your military misconduct are required to render an alternate opinion. In the end, the Board determined there was insufficient evidence to establish an error or injustice that warrants an upgrade to your characterization of service. 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. Sincerely, 4/29/2020