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 17 July 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, as well as applicable statutes, regulations, and policies. 
 
You enlisted in the Navy on 2 May 2006.  On your relevant enlistment documents, you admitted pre-service drug use.  On 13 October 2006, you reported for duty as a hospital corpsman on board Naval Medical Center .  On 22 March 2007, you went to non-judicial punishment (NJP) for the wrongful use of a controlled substance, MDMA (aka “ecstasy”). 
 
On 26 March 2007, you were notified that you were being administratively processed for separation from the Navy by reason of misconduct due to drug abuse.  You waived your rights to consult with counsel, submit statements to the separation authority, and to request an administrative separation board.  Ultimately, on 4 April 2007, you were discharged from the Navy for misconduct with an Other Than Honorable (OTH) characterization of service and assigned an RE-4 reentry code.  On 13 June 2013, the Naval Discharge Review Board denied your upgrade request and determined that your discharge was proper as issued and that no change was warranted. 
 
Your contention that you suffered from a mental health condition 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.” 
 
The Board carefully weighed all potentially mitigating factors, such as your contentions that included, but were not limited to:  (a) you were discharged for one time drug use after the trauma of seeing your mother in the hospital with a life threatening allergic reaction that left her paralyzed on one side of her body and speechless, (b) when you arrived at the hospital, you learned that your mother was paralyzed on one side of her body and could not speak.  You became extremely upset because of your close attachment to your mother, (c) your friends tried to help you by giving you a pill to make you happy.  You didn’t know what it was, but you were so distraught that you took it anyway, (d) when you returned to the Navy Base, you were asked to give a urine sample and the test results showed you had MDMA in your system, (e) you were told that many other people at the Navy Base had positive drug tests but were not discharged, and you believe you were treated differently than other people with positive drug tests because of your sexual orientation, (f) seeing your mother in the hospital led to you accepting a pill to deal with the grief and anxiety you experienced when your mother was in the hospital, which led to your discharge, (g) you believe your discharge was arbitrary and capricious because you were treated differently than other personnel who were not discharged for failing a drug test once, and that the manner in which you were discharged was inconsistent with disciplinary standards at the time of the discharge, (h) that a discharge for failing a drug test once after a traumatic experience without a mental health screening was too harsh, and (i) that you want to be in the Navy Reserve.  Unfortunately, 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, even under the liberal consideration standard, the Board concluded that there was no nexus between any mental health condition or related symptoms and your misconduct, and determined that there was insufficient evidence to support the argument that any such mental health conditions 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 or mental health-related symptoms.  Moreover, the Board observed that you did not submit any clinical documentation or treatment records to support your mental health claims despite a request from the Board on 30 September 2019, to specifically provide additional documentary material.  Further, the Board noted the record shows you were notified of and waived your procedural rights in connection with your administrative separation.  In doing so, you gave up your first and best opportunity to advocate for retention or a more favorable characterization of service.  Additionally, you have provided no convincing or persuasive evidence to corroborate your claims of disparate treatment, and administrative separation processing is mandatory following substantiated drug use, so your command’s decision to process you for an administrative separation was neither arbitrary, nor capricious.  Further, you are ultimately responsible for what you ingest into your body.  Lastly, absent a material error or injustice, the Board generally will not summarily upgrade a discharge solely for the purpose of facilitating VA benefits, or enhancing educational or employment opportunities.  Accordingly, the Board determined that there was no error or injustice in your discharge, and concluded that your drug abuse and disregard for good order and discipline merited your receipt of an OTH discharge. 
 
The Board also noted that character of military service is based, in part, on conduct and overall trait averages which are computed from marks assigned during periodic evaluations.  Your overall active duty trait average was 1.0 in conduct/military behavior.  Navy regulations in place at the time of your discharge required a minimum trait average of 2.5 in conduct/military behavior for a fully honorable characterization of service.  The Board determined that your conduct/military behavior marks during your active duty career were a direct result of your misconduct, which ultimately supported the separation authority’s decision to issue you an OTH characterization of discharge.  In the end, the Board concluded that you received the correct discharge characterization based on your circumstances, and that such OTH characterization was in accordance with all Department of the Navy directives and policy at the time of your discharge. 
 
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 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.