Docket No: 2543-19 Ref: Signature Date Dear Mr.: This is in reference to your application of 20 February 2019 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 that 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 mental health provider, and applicable statutes, regulations and policies. You enlisted in the Navy and began a period of active duty on 22 September 1998. On your pre­enlistment physical, you denied any medical history of experiencing mental health, neurological, On 6 December 1999, you reported to the for duty under instruction. For the 7-day period ending 28 January 2000, you were in an unauthorized absence (UA) status. On 31 January 2000, the staff psychologist at the diagnosed you with an adjustment disorder with mixed disturbance of emotions and conduct and a personality disorder, not otherwise specified. The psychologist strongly recommended your administrative separation and noted that your decision to use controlled substances was a conscious one and that you were aware of the consequences of your actions. On 7 February 2000, you went to non-judicial punishment (NJP) for your 7-day UA and for the wrongful use of marijuana. On 8 February 2000, you were notified that you were being processed for an administrative discharge by reason of misconduct due to drug abuse and for a personality disorder of such severity as to interfere with serving in the military. You waived your right to consult with counsel, to submit statements to the separation authority, and to present your case to an administrative separation board. On 21 March 2000, you were discharged from the Navy for misconduct with an Other Than Honorable (OTH) characterization of service. Your contention that you suffered from a mental health condition related to intensive training 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 case review process, a mental health provider (MHP) also reviewed your request for correction and provided the Board an AO dated 8 January 2020. The MHP observed that you denied any history of mental health concerns or treatment in your pre-enlistment physical. However, the MHP noted that during your January 2000 mental health evaluation, you reported a history of behavioral difficulties prior to entering the military, including an admission to a psychiatric clinic at age 16 for two weeks. The MHP further noted during your evaluation that you were determined to be responsible for your behavior. The MHP concluded by opining that there was insufficient evidence to attribute your misconduct to a mental health condition. The Board carefully weighed all potentially mitigating factors in your case, including your contentions that after intensive training lasting 18 hours a day with no “drops on request,” you had a nervous breakdown and drove all the way home to Texas before returning to base. However, 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, the Board concluded that there was insufficient evidence: (a) to support a nexus between any mental health condition or symptoms and your misconduct, or (b) to support the argument that any such mental health condition mitigated the misconduct that formed the basis of your discharge. Under the liberal consideration standard, the Board concluded that your misconduct was not due to mental health-related symptoms. The Board noted that you did not provide full disclosure of your pre-service psychiatric/mental health issues on your enlistment documentation. The Board determined that with your pre-service mental health history, you would have likely required either a BUMED waiver to enlist, or been prevented from enlisting altogether. The Board concluded that your current characterization does not reflect an error or injustice that merits corrective action. 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 corrective action. 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.