Docket No: 6339-19/
           9319-12
Ref: Signature Date                         

 
Dear .  
 
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 limitations 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 25 November 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).  The Board also considered an advisory opinion (AO) from a qualified mental health professional dated 19 October 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 7 November 1979 after disclosing pre-service possession of marijuana.  You reenlisted on 30 June 1983.  On 22 March 1984, you received nonjudicial punishment (NJP) for wrongful use of marijuana and cocaine.  On 10 May 1984, you acknowledged a retention warning which stated you were being retained in the naval service but any further misconduct may result, not only in disciplinary action, but in processing for administrative discharge.  On 15 May 1984, you received a second NJP for wrongful use of phencyclidine on 13 April 1984.  Subsequently, you were notified of pending administrative separation action by reason of misconduct due to drug abuse.  Your record is incomplete in that it does not contain the administrative separation notice and the commanding officer’s (CO) recommendation is undated, but, the review of a document that appears to be the CO’s recommendation, indicates the CO recommended you be discharged with a general, under honorable conditions, characterization of service.  On 11 June 1984, the discharge authority disapproved the administrative separation action because you had not violated the 10 May 1984 retention warning, an entry that is legally binding on the Navy and cannot be administratively waived.  On 4 September 1984, you received a third NJP for three instances of unauthorized absence, two of them for less than 24 hours and one period that lasted 31 days.  Subsequently, you were notified of pending administrative separation action by reason of misconduct due to drug abuse and frequent involvement of a discreditable nature with military authorities. After you waived your procedural rights, your CO recommended you be discharged with an other than honorable (OTH) characterization of service by reason of misconduct due to drug abuse.  The discharge authority concurred with the CO’s recommendation and directed you be discharged with an OTH characterization of service by reason of misconduct due to drug abuse.  On 28 September 1984, you were discharged.   
 
As part of the Board’s review, a qualified mental health professional reviewed your request and provided the Board with an AO on 19 October 2020.  As detailed in the AO, based on the available evidence, the mental health professional opined that the preponderance of available objective evidence fails to establish that you suffered from PTSD at the time of your military service or that your in-service misconduct could be attributed to PTSD or TBI.  The AO was provided to you on 19 October 2020, and you were given 30 days in which to submit a response.  When you did not provide a response, your case was submitted to the Board for consideration. 
 
The Board carefully reviewed your application, weighed all potentially mitigating factors, and considered your contention that your family hardships “started a slow spiral into a pattern of drug use” which started with “an old tool, marijuana” and eventually became a “gateway” for other drugs.  You contend you were going through a major traumatic event, experiencing a lot of emotional pain, and had to “find a way to medicate my pain in some form or way.”  Even under the liberal consideration standard, the Board discerned no procedural defect, impropriety, or inequity in your discharge and determined the severity of your drug-related misconduct warranted an OTH character of service. Further, the Board concurred with the AO and concluded there was insufficient evidence you suffered from PTSD during military service or that your misconduct could be attributed to TBI, PTSD or other mental health conditions.  The Board, applying liberal consideration and noting you did not submit any documentation or advocacy letters to be considered for clemency, did not find evidence of an error or injustice that warrants upgrading your characterization 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 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,