DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 770-19 Ref: Signature Date This letter is in reference to your application for correction of your naval record pursuant to Title 10, United States Code, Section 1552. After careful and conscientious consideration of the entire record, the Board for Correction of Naval Records (Board) found that the evidence submitted was 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 27 February 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, the 25 September 2019 Advisory Opinion (AO) from a qualified mental health provider, and applicable statutes, regulations, and policies. On 9 July 2019, the Board wrote you requesting additional medical or clinical evidence from you in support of your claim, and received no response. The AO was provided to you on 25 September 2019, 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. You enlisted in the Navy on 1 August 1996. On 7 December 2000, you received non-judicial punishment (NJP) for the wrongful use of a controlled substance. As punishment, you were reduced in rank to E-3, and were awarded restriction, extra duties, and forfeitures of pay. You did not appeal this NJP. On 11 December 2000, you were notified that you were being processed for an administrative separation from the naval service by reason of misconduct due to drug abuse. On 13 December 2000, you elected in writing to waive your rights to consult with counsel, submit statements to the separation authority, and present your case to an administrative discharge board. Subsequently, on your separation physical you denied experiencing any mental health concerns. Ultimately, on 22 March 2001, you were discharged from the Navy with an other than honorable (OTH) characterization of service. Your contention that you suffered from bipolar disorder and depression on active duty 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,” 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 review process, a qualified military mental health provider (MHP), reviewed your contentions and the available records, and provided the Board an AO dated 25 September 2019. The MHP noted that you did not submit any medical documentation with a clinical diagnosis of a mental health condition. The MHP concluded by opining that there is insufficient evidence to attribute your misconduct to a service-connected mental health condition. The Board carefully weighed all potentially mitigating factors, such your contentions that included, but were not limited to: (a) that you suffer from bipolar disorder and depression and are currently receiving treatment through the VA in Tyler, Texas, (b) that with proper treatment your military career would have continued, (c) while you were on active duty you did not know about your mental health conditions or symptoms, and (d) you did not understand your mental challenges back then and did not know that you were self-medicating for your mental illness. Unfortunately, the Board concluded these mitigating factors and contentions were insufficient to warrant upgrading your discharge characterization or granting any other relief, such as restoring your rank lost at NJP. 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, even under the liberal consideration standard, the Board concluded that there was no convincing medical evidence indicating that you suffered from any type of mental health conditions while on active duty, or that any such mental health conditions were related to or mitigated the misconduct that formed the basis of your discharge. The Board also observed that you did not submit any clinical documentation or treatment records to support your mental health claims, despite a request from Board on 9 July 2019 to specifically provide additional documentary material. Further, the Board noted the record shows you were notified of and waived your procedural rights in connection with your administrative separation. In doing so, you gave up your first and best opportunity to advocate for retention or a more favorable characterization of service. Additionally, there is no provision of federal law or in Navy/Marine Corps regulations that allows for an unfavorable discharge to be upgraded based solely on the passage of time. Accordingly, the Board determined that there was no probable material error or injustice in your discharge, and even under the liberal consideration standard, the Board found that your misconduct supported your receipt of an OTH characterization of service. Additionally, the Board reviewed your application under the recent guidance provided in the Under Secretary of Defense’s memorandum dated 25 July 2018 entitled, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations” (USD Memo). The purpose of the USD Memo is to ease the process for Veterans seeking redress and assist Boards for Correction of Military/Naval Records “in determining whether relief is warranted on the basis of equity, injustice, or clemency.” The USD Memo noted that “increasing attention is being paid to…the circumstances under which citizens should be considered for second chances and the restoration of rights forfeited,” and that “BCM/NRs have the authority to upgrade discharges or correct military records to ensure fundamental fairness.” The USD Memo sets clear standards and principles to guide BCM/NRs in application of their equitable relief authority, and further explains that boards shall consider a number of factors to determine whether to grant relief. However, even in light of the USD Memo, the Board still concluded that, given the totality of the circumstances, your request does not merit relief. It is regretted that the circumstances of your case are such that favorable action cannot be taken. 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 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, 4/2/2020