DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 4789-19 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, sitting in executive session, considered your application on 4 June 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, 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. Your originally enlisted in the Navy on 4 December 1989. In June 2002, you were arrested for driving under the influence of alcohol (DUI) with a revoked license. In November 2002, you were arrested by civilian authorities for DUI, speeding, and driving without a license. You ultimately pleaded guilty to careless and reckless driving and attended Alcoholics Anonymous meetings and weekly counseling. On 8 May 2003, you received an honorable discharge at the rank of Petty Officer First Class (E-6) in order to accept a commission. On 9 May 2003, you commissioned as an Ensign in the Nurse Corps. In April 2007, you were diagnosed with an adjustment disorder with anxiety and depressed mood. In April 2010, you were diagnosed with an anxiety disorder not otherwise specified. On 8 April 2011, you were involved in a DUI and involved in a collision causing minor injuries. In May 2011, you were diagnosed with an occupational problem and nicotine dependency. On 6 June 2011, you went to non-judicial punishment (“Admiral’s Mast”) for dereliction of duty, the drunken operation of a vehicle, and conduct unbecoming an officer or gentleman. As punishment, you received a punitive letter of reprimand and forfeitures of pay. You did not appeal your punishment. In January 2012, you were diagnosed with anxiety disorder not otherwise specified and depression disorder. On 7 February 2012, a “Page 6” entry was placed in your service record to document you being in an unauthorized absence (UA) status due to serving a 30-day confinement sentence from your civilian DUI conviction. As a result of your misconduct, on 1 May 2012, you were reverted back to the highest enlisted rank you previously achieved (E-6). Ultimately, on 31 May 2012, you retired with an honorable discharge from the Navy at the rank of E-6 because you exceeded the high year tenure restrictions for a Petty Officer First Class at the time of your reversion. On 7 February 2019, the VA granted you a service-connection for PTSD with bipolar disorder II with history of major depressive disorder and rated you at 70%. Your contention that you suffered from preexisting mental health conditions 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 MilitaryDischarge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations.” As part of the case review process, a Navy mental health provider (MHP) reviewed your request for correction and provided the Board an AO dated 8 July 2019. The MHP noted that you submitted a personal statement that you incurred PTSD from traumatic events you experienced in the Navy in both and , and that you had a life-threatening acute respiratory infection in 2009. However, the MHP determined that there was insufficient evidence to attribute your misconduct of alcohol use to PTSD. The MHP observed that you had a pattern of DUI that predated your traumatic precipitants of PTSD. The MHP concluded by opining that there was insufficient evidence to attribute your misconduct to a mental health condition other than alcohol use disorder. Followingyour AO rebuttal submission for the MHP’s consideration, the MHP still did not change her conclusions and opinions. The Board carefully weighed all potentially mitigating factors, including your contentions that included, but were not limited to: (a) you should have been retired for medical reasons as a Lieutenant (O-3) and not as an HM1/E-6 for misconduct, (b) you had preexisting, undiagnosed PTSD and bipolar disorder prior to the misconduct taking place leading to your discharge, (c) your mental health problems mitigate and outweigh the misconduct underlying your discharge, (d) you have taken full responsibility for what happened and served your punishment, (e) after reporting mental health problems on multiple occasions, you were processed out of the Navy without mental health ever being considered during the discharge process, (f) you have been sober for many years and no longer binge drink, and (g) you have also completed many mental health therapies, lengthy medication trials, have been hospitalized twice for mental health issues and admitted into a long-term residential treatment program. However, the Board found that your contentions and mitigating factors were not sufficient to warrant granting you retirement at the rank of Lieutenant (O-3E) with back pay and allowances, or providing any other requested relief in your case. In making their determination, the Board found that your Admiral’s Mast findings were legally and factually sufficient, and the Board did not identify any substantive, evidentiary, or procedural Admiral’s Mast defects. The Board concluded that your Admiral’s Mast, reversion, and separation processing were in substantial compliance with all Department of the Navy directives and policy at the time of your discharge. Additionally, 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. Even under the liberal consideration standard, the Board concluded that your misconduct was not due to mental health-related symptoms. Accordingly, the Board determined that there was no error or injustice in your discharge, and that there was no evidence in the record regarding any improper motives or abuses of discretion in the investigating, handling and processing of your Admiral’s Mast, reversion to enlisted status, and discharge. The Board also 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. 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,