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 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 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 the 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 25 July 2018 guidance from the Under Secretary of Defense for Personnel and Readiness regarding equity, injustice or clemency determinations (Wilkie Memo). Documentary material considered by the Board consisted of your application and personal statement, together with all material submitted in support thereof, relevant portions of your naval record, an Advisory Opinion (AO) from a qualified mental health provider, and applicable statutes, regulations and policies. You enlisted in the Navy on 10 September 2001. Your pre-enlistment physical and medical history noted no psychiatric or neurologic conditions or symptoms, and you expressly denied ever experiencing “depression or excessive worry” and “nervous trouble of any sort (anxiety or panic attacks).” On 18 December 2003 you received non-judicial punishment (NJP) for the failure to obey a general order or regulation, making a false official statement, two specifications of assault, and disorderly conduct. On the same day you received a “Page 13” counseling sheet documenting the NJP and warning you that any further deficiencies in your performance and/or conduct may result in disciplinary action and in processing for administrative separation. However, on 30 January 2004 you received NJP for the wrongful use of a controlled substance (cocaine). On 30 January 2004 you were notified that you were being processed for an administrative discharge by reason of misconduct due to drug abuse. You elected in writing to waive your rights to consult with counsel, submit statements to the separation authority, and to have your case considered by an administrative separation board. Ultimately, on 27 February 2004 you were discharged from the Navy for misconduct with an under other than honorable conditions (OTH) characterization of service and assigned an RE-4 reentry code. On 10 May 2019 the VA granted you a service-connection for persistent depressive disorder and rated your disability at 50% effective 16 November 2018. Your contention that you suffered from a mental health condition was fully and carefully considered by the Board in light of the guidance provided by 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. As part of the Board review process, the BCNR Physician Advisor who is a licensed clinical psychologist (Ph.D.), reviewed your contentions and the available records and issued an AO dated 29 October 2020. The Ph.D. noted that your in-service records did not contain direct or indirect evidence of mental health condition or psychological/behavioral changes indicating a mental health condition. The Ph.D. stated that showing symptoms associated with depression are typical during the grieving process but do not meet the criteria for a depressive disorder. The Ph.D. observed there were no clinical details linking your VA-diagnosed condition to your military misconduct, and noted that your work performance improved over time versus a decline in occupational functioning. The Ph.D. also noted that you did not indicate you were experiencing any mental health symptoms during your NJP hearings or subsequent separation processing. The Ph.D. determined that although you have presented evidence of a post-service mental health diagnosis, there was insufficient evidence of a service-connected mental health condition that may have mitigated your misconduct. In accordance with the published guidance, the Board gave liberal and special consideration to your record of service, and your contentions about any traumatic or stressful events you experienced and their possible adverse impact on your service. However, the Board concluded that there was no nexus between any mental health conditions or symptoms and your misconduct, and determined that there was insufficient evidence to support the argument that any such mental health conditions mitigated the misconduct that formed the basis of your discharge characterization. Even under the liberal consideration standard, the Board concluded that your misconduct was not due to mental health-related conditions or symptoms. The Board also noted that the evidence of record did not demonstrate that you were not mentally responsible for your conduct or that you should otherwise not be held accountable for your actions. The Board determined, contrary to your contentions, that there was no convincing evidence in the record demonstrating any disparate or discriminatory treatment. The Board also did not believe that your record was otherwise so meritorious to deserve a discharge upgrade. The Board determined that Sailors should receive no higher discharge characterization than is due. The Board believed that, even though flawless service is not required for an honorable discharge, in your case an OTH discharge was appropriate because your overall conduct constituted a significant departure from the behavior expected of a Sailor. The Board also noted that there is no provision of federal law or in Navy/Marine Corps regulations that allows for a discharge to be automatically upgraded after a specified number of months or years. Lastly, absent a material error or injustice, the Board generally will not summarily upgrade a discharge solely for the purpose of facilitating VA benefits or enhancing educational or employment opportunities. In the end, the Board determined that you received the correct discharge characterization and that such action was in accordance with all Department of the Navy directives and policy at the time of your discharge. 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 contentions that: (a) your conduct was primarily motivated by a desire to self-medicate in an attempt to find relief from your depression symptoms incurred as the result of the unfair and discriminatory treatment at the hands of your superior officer, (b) your minor, one-time transgression is clearly outweighed by the fact that your drug usage was caused by your depression, which itself was caused by the disparate and discriminatory treatment from your chain of command, (c) applications for discharge upgrades based on mental health conditions as a contributing factor are entitled to liberal consideration in favor of the veteran, (d) the AO oversteps the bounds of a medical advisory opinion by asserting a legal conclusion, misconstrues the facts, misstates the applicable legal standards and misapplies the law to the facts, and (e) if the Board determines that the Veteran is not entitled relief pursuant to the “Kurta Memorandum,” you should nevertheless be granted a discharge upgrade based on the multitude of guiding principles set forth in the Wilkie Memorandum. Based upon this review, the Board concluded these potentially mitigating factors were insufficient to warrant relief. Specifically, the Board determined that the misconduct detailed in your service record 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,