Docket No: 5978-19
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, sitting in executive session, considered your application on 20 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, applicable statutes, regulations and policies, as well as an advisory opinion (AO) from a qualified mental health professional dated 7 October 2020. 
 
You enlisted in the Navy on 24 August 1993. On 14 March 1995, you were formally counseled after being involved in an alcohol related incident.  On 16 November 1995, you submitted a positive urinalysis demonstrating the use of marijuana.  Subsequently, you were notified of pending administrative separation action by reason of misconduct due to drug abuse, and requested a hearing before an administrative discharge board (ADB).  On 14 February 1996, you received nonjudicial punishment for failure to go at the prescribed time to your appointed place of duty.  On 12 March 1996, you submitted an unconditional waiver of your ADB after consulting counsel.  Your commanding officer, who had previously recommended you be discharged with an other than honorable (OTH) character of service due to misconduct, forwarded the waiver to the discharge authority.  After the Staff Judge Advocate determined the administrative separation package was sufficient in law and fact, the discharge authority directed your discharge with an OTH character of service by reason of misconduct due to drug abuse.  On 18 March 1996, you were discharged with an OTH character of service. 
 
Your request for a change to your characterization of service was reviewed in consideration of your contention that you were suffering from an undiagnosed mental illness at the time of discharge.  Your request 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,” of 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.” 
 
As part of the Board’s review, a qualified mental health professional reviewed your request and provided the Board with an AO on 7 October 2020. As reflected in the AO, the mental health professional opined that there was insufficient evidence that you developed a mental health condition as a result of your military service, or that your misconduct may be attributed to a mental health condition.  The AO was provided to you on 13 October 2020, and you were given 30 days in which to submit a response.  When you did not respond within 30 days, your case was submitted to the Board for review.   
 
The Board carefully reviewed your application, weighed all potentially mitigating factors, and considered your contention that you were suffering from an undiagnosed mental illness while on active duty.  You further contend you disclosed the symptoms to your command but it failed to adequately address the issues.  Specifically, you provided details regarding the voices you heard on a regular basis, which impaired your ability to focus on your work.  You stated the mental issues were exacerbated by the fact you were not “fitting in well with your new command” but you did not want to “be labeled as weak” so you continued to keep your issues to yourself while your mental health deteriorated.   
 
The Board also considered your contention that you were given “improper counseling” during the separation process and were manipulated into agreeing to waive your ADB “without any honest understanding of the consequences.”  Specifically, the Board considered your contention that you were misled by the command, denied legal counsel and proper separation procedures, and accepted an OTH discharge without any real understanding of the consequences.  You explained in your statement to the Board that you were advised to request an ADB “with the understanding the hearing would never actually happen” and that you were “only requesting the hearing to create a paper trail” that would “assist you in pursuing a discharge upgrade” once you were separated from the military.  You further contend that your counsel stated it would be easier for you to “just get out” and address your legal concerns and mental health issues “once outside of the military.”   
 
Lastly, the Board noted your statement that “under the influence of the Marines and NCOs” in your command, you began smoking marijuana with them.  This ultimately led to your positive urinalysis in November 1995 and subsequent administrative processing.  You further contend that “after learning that a discharge was likely,” you retreated further into yourself as your “feelings of isolation and helplessness continued to grow.”   
 
The Board carefully considered each of the above contentions and your statement regarding your post-service contributions but also noted you did not provide supporting post-service documentation or advocacy letters.  Unfortunately, after careful consideration, the Board, relying on the AO, did not find evidence of an error or injustice that warrants upgrading your character of service nor did they find sufficient evidence to warrant clemency.  The Board noted there is insufficient evidence that you were improperly counseled during the administrative separation process or that you were denied legal counsel.  The Board further noted that by your own statement, your drug abuse, which led to your administrative discharge, was not attributed to your contended undiagnosed mental health condition.  Even under the liberal consideration standard, the Board found your misconduct warranted an OTH character of service.   
 
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 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,