Docket No: 5614-19 Ref: Signature Date MR Dear Mr. : This is in reference to your application for correction of your naval record pursuant to Section 1552 of Title 10, United States Code. After careful and conscientious consideration of relevant portions of your naval record and your application, the Board for Correction of Naval Records (Board) found the evidence submitted 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, sitting in executive session, considered your application on 30 October 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 qualified mental health provider, and applicable statutes, regulations and policies, to include the 25 July 2018 guidance from the Under Secretary of Defense for Personnel and Readiness regarding equity, injustice or clemency determinations. You enlisted in the Navy on 1 September 1987. On your pre-enlistment documents you admitted marijuana use and having an alcohol-related conviction. On 23 November 1987 you received non-judicial punishment (NJP) for assault and for violating a lawful general regulation. You were issued a “Page 13” counseling warning (Page 13) documenting your NJP that expressly warned you that any further deficiencies in your performance and/or conduct may result in disciplinary or administrative action. On 8 February 1989 you received NJP for unauthorized absence for four days, underage drinking, and drunk/disorderly conduct. On 13 February 1989 you received another Page 13 expressly warning you that any further deficiencies in your performance and/or conduct may result in disciplinary or administrative action On 22 February 1989 you were convicted at a Summary Court-Martial of the wrongful sale of U.S. military property and the wrongful use of a controlled substance (cocaine). On 15 March 1989 you received NJP for disobedience of a lawful order and the wrongful use of a controlled substance (marijuana). On 15 March 1989 you were provided notice that you were being administratively processed for separation from the Navy by reason of misconduct due to: (a) a pattern of misconduct, (b) the commission of serious military offenses, and (c) drug abuse. You elected in writing to waive your rights to consult with counsel, submit a written statement, and to request a hearing before an administrative separation board. In the interim, you underwent a medical evaluation. The evaluation revealed no evidence of psychosis or disabling neurosis and insufficient evidence of a character disorder. The Medical Officer also determined that you were not drug or alcohol dependent. Ultimately, on 11 April 1989 you were discharged from the Navy for a pattern of misconduct with an other than honorable conditions (OTH) characterization of service and assigned an RE-4 reentry code. Your contention that you suffered from post-traumatic stress disorder (PTSD) and other related mental health conditions was fully and carefully considered by the Board in light of the guidance provided by the Secretary of Defense’s Memorandum, “Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requested by Veterans Claiming Post Traumatic Stress Disorder” of 3 September 2014, and the "Clarifying Guidance to Military Discharge Review Board 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" memorandum of 25 August 2017. As part of the Board review process, the BCNR Physician Advisor, who is a medical doctor and Fellow of the American Psychiatric Association (MD), reviewed your contentions and the available records, and issued an AO dated 22 September 2020. The MD concluded by opining that there was insufficient objective evidence you developed PTSD as a result of your military service or that your misconduct is mitigated by a mental health condition. The Board carefully weighed all potentially mitigating factors, such your contentions that you suffer from PTSD, depression, anxiety, and anger issues due to the situations you experienced during your duty on the aircraft carrier that included, but were not limited to, knowing a fellow shipmate who committed suicide and that you almost fell overboard from the ship yourself. Unfortunately, the Board concluded these mitigating factors and contentions were not sufficient to warrant upgrading your discharge characterization or granting any other relief. 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 PTSD and/or PTSD-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. The Board concluded that your misconduct was not attributable to mental health-related conditions or symptoms. The Board initially noted that the evidence of record did not demonstrate that you were not mentally responsible for your conduct or that you should not be held accountable for your actions. The Board also noted that there is no provision of federal law or in Navy/Marine Corps regulations that allows for a discharge to be automatically upgraded after a specified number of months or years. Further, the Board observed 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, 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 impropriety or inequity in your discharge, and even under the liberal consideration standard, the Board concluded that your serious misconduct and total disregard for good order and discipline clearly merited your receipt of an OTH. In reviewing the circumstances of your separation and characterization of service, the Board considered the totality of the circumstances to determine whether relief is appropriate today in the interests of justice in accordance with guidance provided by the Under Secretary of Defense for Personnel and Readiness (Wilkie Memo of 25 July 2018). Accordingly, the Board considered and acknowledged your positive contributions to the Navy, the length of your active duty service to our nation, and your post-discharge achievements. Even considering these potentially mitigating factors in accordance with the above referenced guidance, the Board did not find that relief was in the interest of justice. The Board concluded that your OTH discharge characterization was issued without error or injustice, and that corrective action is not warranted. 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. Sincerely,