Docket No: 3987-19 
Ref: Signature Date 

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 for Correction of Naval Records (Board), sitting in executive session, considered your application on 9 September 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. 
 
You enlisted in the Navy and began a period of active duty on 28 September 2000.  You served without disciplinary incident for over a year.  On 7 December 2001, you received nonjudicial punishment (NJP) for a period of unauthorized absence and three specifications of insubordinate conduct.  On 18 April 2002, you received a second NJP for disrespect toward a superior commissioned officer, willfully disobeying a superior commissioned officer, and failure to obey a lawful order.  Medical notes dated 13 March 2002, reflect that you were in good health but reported ear, nose, and throat trouble.  A remark in the March 2002 notes states “boxer’s fx, age 15.”  On 6 September 2002, you were notified of administrative separation proceedings against you on the basis of a pattern of misconduct and commission of a serious offense.  On 13 September 2002, Commanding Officer (CO),  recommended that you be separated with an other than honorable characterization of service.  Your CO noted that you waived your right to appear before an administrative separation board.  Your CO also opined that you were a habitual offender who demonstrated a complete disregard for military authority and rules and regulations.  On 4 October 2002, you were discharged from the Navy on the basis of misconduct, and received an other than honorable characterization of service and a reentry (RE) code of RE-4. 
 
In your application for correction, you ask that your discharge be changed from an other than honorable to a Medical discharge with an honorable characterization.   You state that in March 2002, while out to sea, you participated in a biological drill and had an adverse emotional and physical reaction when you put on a gas mask.  You contend that Medical evaluated your condition and you were found to have a deviated septum with tissue swelling.  You state Medical recommended surgery.   You state you did not have the surgery while in the military because you could not find someone to stay with you.  You had an unsuccessful surgery following your discharge. 
 
The Board carefully reviewed your application, your contentions, and your available service record.  The Board took into consideration your assertion that you are entitled to a disability discharge with an honorable characterization of service in part because you suffered from a deviated septum during your time in the Navy.  The Board noted that your Medical record indicates that you had a pre-existing medical condition that manifested at age 15, before your entry into the Navy.  Even in consideration of your statement that you had difficulty breathing and an emotional reaction when putting on a gas mask, the Board found that your record and the information you provided do not establish that you had a disability or condition that was either incurred or aggravated by your active duty service. Further, even if your disability condition was service connected, the Board concluded you were ineligible for disability processing since you were processed for misconduct.  Military disability regulations direct misconduct processing to supersede disability processing.  Accordingly, the Board found that a disability discharge is not appropriate in your case.  Furthermore, the Board noted that you had two NJPs in your record.  The Board considered your NJPs and your CO’s comments, and found that the other than honorable characterization of service is supported by your in-service behavior since it constitutes a significant departure from the conduct expected of a member of the Navy.  Accordingly, the Board concluded that your other than honorable characterization of service was issued without error or injustice. 
 
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.