Docket No: 6621-19 
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 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 4 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).  The Board also considered an advisory opinion (AO) from a qualified mental health professional dated 27 October 2020.   
 
You enlisted in the Navy on 25 August 1999.  After serving on continuous honorable active service until 15 September 2003, you reenlisted on 16 September 2003.  On 11 February 2004, you were notified of pending administrative separation action by reason of misconduct due to drug abuse.  After you waived yours procedural rights, your commanding officer recommended you be discharged with an other than honorable (OTH) characterization of service due to misconduct.  The discharge authority approved this recommendation and directed discharge with an OTH characterization of service by reason of misconduct due to drug abuse.  On 26 March 2004, 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 27 October 2020.  As detailed in the AO, the mental health professional noted that your in-service records do not contain direct or indirect evidence of a mental health condition, nor do they contain psychological/behavioral changes which may have indicated a mental health condition.  The AO also noted you did not provide any evidence of a post-discharge mental health diagnosis.  Based on the available evidence, the mental health professional concluded that the preponderance of available objective evidence does not support your contention that you suffered from a mental health condition at the time of your military service or that your in-service misconduct could be attributed to a mental health condition that may have mitigated your misconduct.  The AO was provided to you on 29 October 2020, and you were given 30 days to respond.  When you did not respond within the 30 days, the 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 taking Adderall without a prescription because you had been denied treatment for insomnia and PTSD.  You contend you were unaware Adderall contained illegal drugs and naively assumed there was no harm or illegality in using it because a fellow serviceman had suggested trying it.  The Board considered your contention that you tried to get medical treatment but were repeatedly told to “exercise more or eat healthier” despite “obviously suffering from some type of PTSD” and “go see the chaplain.”  Further, the Board considered your contention that your “legal office said that there is nothing that can be done and refused to file my appeal or let me see a JAG officer.”  For purposes of clemency, the Board also considered your statement describing your post-service accomplishments and the burden the OTH discharge has had on your career and personal life. 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.  Further, the Board, relying on the AO, concluded there was insufficient evidence that your misconduct could be attributed to a mental health condition or that you were denied required legal services.  The Board, applying liberal consideration, did not find evidence of an error or injustice that warrants upgrading your characterization 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.  Based upon this review, the Board concluded these potentially mitigating factors were insufficient to warrant relief.  Specifically, the Board determined that your drug-related 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, 
1/13/2021
Executive Director