Docket No: 5828-19            
Ref: Signature Date 

Dear   
 
This letter is in reference to your reconsideration request.  You previously petitioned the Board for Correction of Naval Records (Board) and were advised that your application had been denied.  Your case was reconsidered in accordance with Board procedures that conform to Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004).  After careful and conscientious consideration of relevant portions of your naval record and your application, the 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, sitting in executive session, considered your application on 9 November 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, and applicable statutes, regulations, and policies.  
 
You enlisted in the Navy and began a period of active duty on 19 August 1987.  You received nonjudicial punishment (NJP) on 8 January 1989, for wrongful use of a controlled substance (THC).  On 18 June 1991, you received a second NJP for wrongful use of a controlled substance.  On 19 June 1991, you were notified that administrative separation proceedings being initiated against you and you waived your right to appear before an administrative separation board.  Commanding Officer, USS  () recommended that you receive an other than honorable discharge due to drug abuse.  On 28 June 1991, you received a third NJP for disrespect toward a petty officer.  On 12 July 1991, you were discharged on the basis of misconduct due to drug abuse, and received an other than honorable characterization of service and a reentry (RE) code of RE-4. 
 
You previously petitioned the Board in 2017 for an upgrade to your discharge characterization.  The Board considered your contentions of not receiving alcohol and drug rehabilitation prior to being released, but found that your request did not merit corrective action.   
 
In your application for reconsideration, you again seek an upgrade to your other than honorable discharge in part so that you may obtain mental health care from Veterans Affairs (VA).  You provide a personal statement in support of your application in which you state that you were intimidated and ostracized to the point of mental harassment during your time in the Navy.  Out of frustration, you reacted the wrong way.  You regret your conduct but note that your youth and the pressure of being the eyes for the ship exacerbated your Post Traumatic Stress Disorder (PTSD) and depression.  You state that during your time in the Navy, you saw the rescue attempt for a man overboard fail, and that you were part of the evacuation team at for Americans.  You state you were constantly on guard while in .  Finally, you note you were unfamiliar with the administrative separation process and did not get counsel.  You deeply regret using drugs and alcohol to escape and alleviate stress. 
 
In a communication dated 3 October 2019, you were asked to provide additional medical or clinical evidence to support your claim.  When you did not provide additional evidence, your case was re-opened and processed for consideration by the Board. 
 
The Board noted that your request for reconsideration request raised issues of in-service mental health struggles.  Therefore your request was fully and carefully considered by the Board in light of 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.  The Board also reviewed your petition in light of the Under Secretary of Defense’s memorandum, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations” of 25 July 2018.  
   
As part of the review process, a Physician Advisor reviewed your contentions, your available record and your submissions to the Board, and issued an Advisory Opinion dated 30 September 2020.  The Advisory Opinion noted that your in-service records do not indicate the existence of mental health symptoms or conditions, other than drug abuse.  The Advisory Opinion concluded that based on the available evidence, there is insufficient evidence of a mental health condition attributable to your military service that may have mitigated your misconduct.  The AO was provided to you, and you were given 30 days in which to submit a response.  When you did not provide a response within the 30-day timeframe, your case was submitted to the Board for consideration.   
 
The Board, in its review of your entire record and application, carefully weighed all potentially mitigating factors, including your youth at the time of your service, your statements about being harassed and ostracized during your time in the Navy, and the stressors you faced due to your witnessing an unsuccessful man overboard rescue and due to your duty in .  The Board also considered that you assert that your PTSD and depression were exacerbated by the circumstances of your military duty.  The Board was empathetic to the information in your personal statement, but concurred substantively with the Advisory Opinion and concluded that there was insufficient evidence in either your available record or in your submissions to the Board to establish that you suffered from a mental health condition that may have mitigated your misconduct.  Absent such information, the Board concluded that the misconduct documented in your three NJPs supported the other than honorable discharge.  The Board determined that your current discharge was executed without error or injustice, and that corrective action is not warranted. 
 
It is regretted that the circumstances of your reconsideration petition 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 the absence of new matters for reconsideration, the decision of the Board is final, and your only recourse would be to seek relief, at no cost to the Board, from a court of appropriate jurisdiction. 
 
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,