Docket No: 6253-19
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 you did not file your application in a timely manner, the statute of limitation was waived in accordance with the 25 August 2017 guidance from the Office of the Under Secretary of Defense for Personnel and Readiness (Kurta Memo).  A three-member panel of the Board, sitting in executive session, considered your application on 11 December 2020.  The names and votes of the panel members 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, to include the Kurta Memo, the 3 September 2014 guidance from the Secretary of Defense regarding discharge upgrade requests by Veterans claiming post-traumatic stress disorder (PTSD) (Hagel Memo), and the 25 July 2018 guidance from the Under Secretary of Defense for Personnel and Readiness regarding equity, injustice, or clemency determinations (Wilkie Memo).  Additionally, the Board also considered the advisory opinion (AO) furnished by a qualified mental health provider, which was previously provided to Petitioner, and your rebuttal to the AO dated 4 December 2020.   
 
The Board determined that your personal appearance, with or without counsel, would 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. 
 
You enlisted in the Navy on 31 August 2000.  On 7 December 2000, you received nonjudicial punishment (NJP) for assault by unlawfully striking a service member in the face with your closed hand.  On 17 May 2001, you received a second NJP for an unauthorized absence and destruction or wrongful disposition of military property.  On 26 July 2001, you received a third NJP for two instances of failure to obey an order.  In September 2001, you reported to the  which deployed to Afghanistan in mid-September.  After deployment, on 5 June 2002, you received a fourth NJP for wrongful use of a controlled substance.  On 25 July 2002, you were convicted by summary court-martial for wrongfully using reproachful words and unlawfully striking a service member in the face with your fist.  You were sentenced to forfeiture and confinement.  Your record is incomplete in that it does not contain the documents pertaining to your administrative discharge, but based on your Certificate of Release or Discharge from Active Duty (DD Form 214), it appears you exercised your right to an administrative discharge board.  After being afforded all of your rights, the separation authority directed discharge with an other than honorable (OTH) character of service by reason of misconduct due to drug abuse.  You were discharged on 23 August 2002. 
 
As part of the Board’s review, a qualified mental health professional reviewed your request and provided the Board with an AO on 22 October 2020.  The AO stated that your in-service records do not contain direct or indirect evidence of a diagnosis of an anxiety disorder or psychological/behavioral changes which may have indicated any mental health condition.  Although you have presented evidence of a post-discharge mental health diagnosis, the AO stated your post-service diagnoses are based on evaluations and reported symptoms from a patient-presented history approximately 18 years after discharge.  Further, the AO states there is no evidence linking your diagnosis to military service or to your misconduct.  The AO points out that your pattern of misconduct began prior to experiencing any reported trauma and your post-discharge clinical notes indicate additional reported trauma, not linked to your military service, which would likely substantiate your post-service mental health diagnosis.  Based on the available evidence, the AO concluded that although you have a post-discharge diagnosis of Generalized Anxiety Disorder, the available objective evidence fails to establish you suffered from anxiety at the time of your military service or that your in-service misconduct could be attributed to anxiety or other mental health conditions.   
 
The Board carefully reviewed your application, weighed all potentially mitigating factors, and considered your contention that you smoked marijuana in an attempt to “quell your anxiety.”  Specifically, the Board considered your contention that the “quick and unexpected deployment to a combat zone took a significant emotional toll” on you.  You had a “difficult time adjusting to deployment,” developed generalized anxiety disorder, and “struggled to grapple with the troubling experiences.”  Additionally, the Board considered your contention that you were not offered an opportunity for rehabilitation or a PTSD screening.  The Board, relying on the AO, concluded there was insufficient evidence that your misconduct could be attributed to a mental health condition.  The Board noted your established pattern of misconduct prior to deploying to a combat theater on  and also noted a specific traumatic event did not precipitate your contended mental health condition.  The Board further noted your record indicates you admitted that you started smoking marijuana at age 12 and used cocaine starting at age 14.   
 
The Board also considered your contention that you and your friend were the only ones tested out of “3000 marines and 1200 sailors” because “widespread testing would have revealed a widespread problem” and by only testing the two of you, “they could set an example for the rest of the sailors and marines rather than make large numbers of people ineligible for further service during a wartime period.”  Further, the Board considered your contention that the command chose to drug test you because “testing positive for drugs gave [your] command an excuse to discharge [you] rather than trying to connect [you] to mental health services or get [you] meaningful support.”  The Board also considered your contention that your discharge was inequitable because so many others on your ship committed the same misconduct due to the stress of the deployment but you were “disciplined while so many other incidents were just swept under the rug.”  The Board, even applying liberal consideration, determined there was insufficient evidence of an error or injustice to overcome the presumption of regularity with respect to the command’s actions. 
 
In rebuttal to the AO, you emphasize that your claims “trigger evaluation under the liberal consideration standard.”  The Board also considered your in-service difficulty sleeping while on deployment which you mentioned to medical when seeking treatment for a breathing issue.  Additionally, the Board considered the medical research on the relationships between trauma exposure and self-medication with substances.  Further, the Board considered your contention that your discharge is inequitable because the “timing is inappropriate” because you were “showing signs of difficulty adapting to military life” but the Navy deployed you to a “combat theater anyway,” and then discharged you very soon after your return.  You contend the “Navy had red flags along the way that it ignored because our country was facing exceptional circumstances,” and you have “been left to put together the pieces” on your own.  The AO rebuttal also emphasized that you “stepped up to the extenuating circumstances,” “served during a critical time,” and set aside your challenges during deployment and refrained from misconduct.  The Board considered your contention that your OTH discharge is no longer equitable given your service and the consequences you’ve faced since discharge and your request that “a single positive drug test no longer follow [you] for the rest of [your] life” because you have paid the consequences.  The Board also considered the past Board decision letter and articles submitted with the AO rebuttal.  Even under the liberal consideration standard, the Board discerned no procedural defect, impropriety, or inequity in your discharge and determined your misconduct warranted an OTH character of service.  
 
The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in your case in accordance with the Wilkie Memo.  These included, but were not limited to, your desire to upgrade your discharge and contentions discussed above.  The Board further considered your contention you served honorably as evidenced by your award history, and also considered your statement describing your post-service accomplishments and your letters of support from your mother and stepfather describing your demeanor post-service.  The Board noted you did not provide supporting evidence or advocacy letters describing your post-service record.  Further, the Board noted your award history and also noted you incorrectly state that you received a Good Conduct Medal.  The Board, applying liberal consideration, did not find evidence of an error or injustice that warrants relief in the form of clemency.  Based upon this review, the Board concluded these potentially mitigating factors were insufficient to warrant relief.  Specifically, the Board determined your misconduct outweighed these mitigating factors.  Accordingly, given the totality of the circumstances, the Board determined that your request does not merit relief.   
 
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,