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 22 August 2019. 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 Marine Corps in April 1990 and deployed in support of on December 1990. Upon your return from deployment, you were counselled for drinking alcohol and driving on October 1991. You were subsequently apprehended for driving under the influence of alcohol on June 1992 and July 1992. You assert that you suffered Traumatic Brain Injury (TBI) on August 1992 as a result of motor vehicle accident. You were screened for substance abuse on September 1992 and later declined alcohol rehabilitation treatment. On January 1993, you were administratively separated for pattern of misconduct with an Other than Honorable (OTH) characterization of service. The Naval Discharge Review Board denied your request for an upgrade to your characterization of service on December 2007. As of 2018, you were rated by the Department of Veterans Affairs (VA) for migraine headaches, facial scars, sleep apnea syndrome, Post-Traumatic Stress Disorder (PTSD), and TBI. The Board carefully considered your arguments that you deserve a change to your narrative reason for separation to disability and upgrade to your characterization of service. You allege that your PTSD and TBI conditions contributed to your misconduct leading to your administrative separation and OTH characterization of service. Unfortunately, the Board disagreed with your rationale for relief despite applying liberal consideration in your case. First, the Board concluded you were appropriately discharged for misconduct vice disability. Despite your post-discharge disability ratings from the VA, the Board found no evidence in your record that supported a finding that you were unable to perform the duties of your office, grade, rank or rating, at the time of your discharge, due to a disability condition. In the Board’s opinion, had you not been administratively separated for misconduct, you likely would have been eligible for continued active duty service and reenlistment. Additionally, the Board noted that disability regulations direct that misconduct processing superseded any disability processing. Since you were administratively separated for misconduct, the Board found that you were ineligible to be processed for a disability even if evidence of unfitness existed. So based on the Board’s finding that there was no evidence of unfitness for continued naval service and your disqualification from disability processing due to your misconduct related administrative separation, the Board concluded you were properly discharged for misconduct. Second, the Board considered whether a discharge upgrade was merited based on your mental health diagnoses. In the end, they determined the evidence does not support relief in your case. One, they noted that your TBI incident occurred well after your driving under the influence misconduct. Therefore, they found no nexus between your post-discharge TBI diagnosis and the misconduct that formed the basis for your discharge and characterization of service. Regarding your PTSD diagnosis, the Board determined a possible nexus exists but concluded the seriousness of your misconduct was too severe to allow for an upgrade of your characterization of service. You were involved in at least two incidents of driving under the influence of alcohol that could have resulted in death, serious bodily injury, or property damage. Additionally, the Board considered that you were never punished at a court-martial or through non-judicial punishment for your misconduct despite the seriousness of your offenses. In their mind, this significantly reduced your argument that an injustice exists in your record. So, based on these factors, the Board concluded the circumstances of your case do not create sufficient mitigation to overcome the seriousness of your misconduct, even after applying liberal consideration of your mental health conditions. Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to your record. 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 issue(s) involved. Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of 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.