Docket No. 8185-19 
Ref: signature Date 

  
Dear  : 
 
This 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 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 for Correction of Naval Records, sitting in executive session, considered your application on 21 August 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, and applicable statutes, regulations and policies.   
 
You enlisted in the Navy on 1 April 1986 and were granted an enlistment waiver for pre-service drug abuse.  On your pre-enlistment medical paperwork, you denied any mental health symptoms and denied receiving any mental health treatment.  Your pre-enlistment physical was also negative for any psychiatric/neurologic abnormalities.  Additionally, you expressly denied being a homosexual or bisexual.  You also signed the drug/alcohol abuse statement of understanding (SOU) where you acknowledged that:  (a) drug abuse is against the law and violates Navy standards of behavior and performance and will not be tolerated, (b) the illegal or improper use of alcohol, marijuana and other controlled substance endangers your health and the safety of your shipmates, and (c) if you illegally use or possess drugs, including marijuana, that appropriate disciplinary and/or administrative action may be taken against you.   
 
On 15 September 1986, you received non-judicial punishment (NJP) for wrongfully altering your military identification card.  On 30 October 1986, you signed a second drug abuse SOU on board the  .  On 17 June 1988, you received NJP for making a false official statement.  The same day you received a “Page 13” counseling warning (Page 13) documenting your NJP.  The Page 13 warned you that any further deficiencies in performance and/or conduct may result in disciplinary action and in processing for administrative separation.  However, on 9 December 1988, you were convicted at a Summary Court-Martial of the wrongful use of a controlled substance (methamphetamine).  As punishment, you received forfeitures of pay, restriction, hard labor without confinement, and a reduction in rank to the lowest enlisted paygrade (E-1).     
 
On 17 December 1988, you were notified that you were being processed for an administrative discharge by reason of a pattern of misconduct, and misconduct due to the commission of a serious offense.  You elected in writing to waive your rights to consult with counsel and to present your case to an administrative separation board.  On 21 December 1988, you underwent a drug dependency screening and the medical officer determined that you were not drug dependent.  Ultimately, on 7 March 1989, you were discharged from the Navy with an Other Than Honorable (OTH) characterization of service and assigned an RE-4 reentry code. 
 
Your contention that you suffered from certain mental health conditions on active duty 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.  
 
The Board carefully weighed all potentially mitigating factors, such as your contentions that included, but were not limited to:  (a) on active duty you were found to be homosexual and persuaded to sign a waiver in which you agreed not to participate in homosexual activities in the Navy, and (b) after signing the waiver you went through depression/paranoia that lead to your discharge.  Unfortunately, the Board determined these mitigating factors and contentions were not sufficient to warrant upgrading your discharge or granting any other relief in your case.   
 
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 found that there insufficient evidence to conclude 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 pre-service, active duty, or post-service clinical documentation or treatment records to support your mental health claims.   
 
The Board additionally found that, contrary to your contention, you provided insufficient evidence to corroborate your claim that you were ever required to sign any form of homosexual conduct abstinence form.  The Board also observed that your service record did not contain any such purported waiver.   
 
Additionally, 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.  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.  Accordingly, the Board determined that there was no impropriety or inequity in your discharge, and even under the liberal consideration standard, the Board found that the pattern of misconduct contained in your record merited your receipt of an OTH discharge.   
 
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 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,