Docket No: 7949-20 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 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 21 December 2000. 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 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). You enlisted in the Navy and began a period of active duty on 15 December 1998. On 12 April 2002, Administrative Remarks (Page 13) were entered into your service record, noting that on 24 January 2002, you were screened by Medical Treatment Facility, and you were found not suitable for overseas, remote duty, or operational assignment due to your medical condition. The Page 13 references a 5 April 1999 evaluation with subsequent medication management, individual therapy and group therapy for Major Depressive Disorder. The Page 13 continues to state that on 18 June 2001, a Medical Board found you fit for duty, but noted you had ongoing difficulties managing the depressive symptoms and functioning in a military environment as manifested by poor and inconsistent work performance. The 12 April 2020, Page 13 advised you that subsequent violation of the Uniform Code of Military Justice (UCMJ), could result in an administrative separation under other than honorable (OTH) conditions. Your service record indicates that the following month, Navy Drug Lab reported that you tested positive for cocaine on three separate urinalysis tests. On 22 May 2002, you were notified that administrative separation proceedings were initiated against you on the basis of Drug Abuse and Convenience of the Government (Medical Conditions). You waived your right to appear before an administrative separation board. On 30 May 2002, Commander, forwarded your package to the separation authority noting your failure to comply with the Navy’s zero tolerance policy on drug abuse and recommended your immediate separation. The recommendation was approved, and on 18 June 2002, you were discharged from the Navy on the basis of Misconduct, and received an OTH characterization of service and a reentry (RE) code of RE-4. In your application to the Board, you request an upgrade from an OTH to an honorable characterization of service, a change to your RE code to reflect an RE-1, a change to your narrative reason for separation to “Convenience of the Government,” and an appropriate separation code. You assert that the discharge was procedurally defective at the time, unfair at the time, and that the discharge is unfair now. You provide a legal brief to the board and assert in part that the underlying basis of your separation was procedurally defective, adverse action against you to include the administrative discharge board was unjust, and that your OTH discharge is inequitable. You provide information about your personal background in which you state that your father was a retired Marine Colonel, you wished to enlist in the Marine Corps as well, but were able to connect with a Navy recruiter more easily. You attended Basic Training, which was very difficult due to the unusually cold winter, and were then assigned to the , . You state you were the 49th man and as a result, slept on the deck. You felt homeless, and anxiety and depression set in. You got involved with people who you thought were your friends, and started using cocaine to keep yourself awake. You state that you consulted with a judge advocate, and were told to waive your right to appear before an administrative separation board or face time at Your further assert that since your discharge, you have had a daughter, are a good husband and a good father, are gainfully employed, and have never been in trouble with the law. You have a blood disorder called hemochromatosis, which started interfering with your work as a locksmith. You now work part-time due to your high sensitivity to iron. You are also a which is a national organization for disaster relief staffed by veterans and law enforcement volunteers. You state that you have led a stable, productive and successful life and are a completely different person, and have learned a lot from your mistakes. You assert that your OTH discharge no longer serves a purpose. The Board noted that your application for correction raises a potential issue of a mental health condition. In a communication dated 18 September 2019, you were asked to provide additional medical or clinical evidence to support your claim. When you did not provide additional evidence, your case was re-opened and processed for consideration by the Board. As part of the review process, a Licensed Clinical Psychologist reviewed your request and issued an Advisory Opinion (AO). The AO noted that your available records contain direct evidence of Major Depressive Disorder while you were in the Navy. The AO concluded that there is sufficient direct evidence that you exhibited behaviors associated with depression during your military service, however there is insufficient evidence to lend support to the contention that your misconduct of drug use was the result of your depression. The AO was provided to you, and you were given 30 days in which to submit a response. When you did not provide a response within the 30-day timeframe, your case was submitted to the Board for consideration. The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in your case including in accordance with the Wilkie Memo, the Hagel Memo, and the Kurta Memo. These included, but were not limited to your contention that the OTH discharge no longer serves it purpose, and was unjustly and erroneously executed at the time of your Naval service. The Board carefully reviewed your available records and like the AO, noted that you were receiving medical care for mental health concerns while in the Navy, were found fit for duty, but continued to struggle in a military environment. In April 2002, you were counseled regarding compliance with the UCMJ, but subsequently tested positive on three occasions for cocaine. By your own statement to the Board, your cocaine use appears to have been in part to remain awake after spending time off duty with individuals who may have had a questionable influence on your behavior. The Board considered your statements regarding your feelings of homelessness and depression after being assigned to the and noted that since your discharge, you have led a stable and productive life. The Board concurred with the AO and found that based on the evidence in your record and in consideration of the information submitted by you, there is insufficient evidence to establish that your in-service mental health conditions contributed to your misconduct. The Board concluded that even taking into account your in-service circumstances and your post-discharge achievements, that the wrongful use of cocaine on multiple occasions while in an active duty status merited the OTH characterization of service on the basis of misconduct, with an RE-4 reenlistment code and a separation code of HKK. With respect to your contentions that the administrative separation process was unjust and erroneous, the Board considered that you were given notice of the basis of the separation proceedings, were afforded the opportunity to consult with counsel and appear before and board, and that the proceedings were reviewed by your chain of command prior to the execution of the discharge. The Board concluded that your assertions of error and injustice alone are insufficient to overcome the information in your record, and determined that your discharge was properly as issued. Accordingly, the Board found that corrective action is not warranted with respect to your characterization of service, the narrative reason for separation of Misconduct, the separation code of HKK, and the RE-4 reenlistment code. 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, 1/19/2021 Executive Director