DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 8463-19 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, sitting in executive session, considered your application on 23 April 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, applicable statutes, regulations and policies, as well as the 3 March 2020 advisory opinion (AO) from a Navy mental health professional. You enlisted in the Marine Corps on 27 August 2007. On 25 February 2008, you received nonjudicial punishment for disobeying an order/regulation by leaving without signing out, allowing an underage Marine to consume alcohol, and disorderly conduct due to drunkenness by consuming alcohol. On 7 May 2009, you were convicted by summary court-martial for wrongful use of marijuana. Subsequently, you were notified of pending administrative separation action by reason of misconduct due to drug abuse and a pattern of misconduct. After waiving your procedural rights, your commanding officer recommended you be discharged with an other than honorable (OTH) characterization of service. The discharge authority approved this recommendation and directed discharge with an OTH characterization of service due to misconduct. On 19 June 2009, you received an OTH discharge. Your request for a change to your characterization of service was reviewed in consideration of your contention you suffered from Post-Traumatic Stress Disorder (PTSD). Your request 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 Board’s review, a Navy mental health professional reviewed your request and provided the Board with an AO on 3 March 2020. The AO noted there is no evidence of a PTSD diagnosis. The AO also noted you had reported marijuana use prior to entering military service and determined it was more reasonable to consider that your in-service drug use was a return to your pre-service behavior rather than an attempt to self-medicate trauma symptoms. The AO concluded there was insufficient evidence that your misconduct should be attributed to a mental health condition incurred during military service. The AO was provided to you on 5 March 2020, and you were given 30 days in which to submit a response. When you did not respond within 30 days, your 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 self-medicating your PTSD symptoms during your “personal off-time” in order to “normalize” and “deal with normal civilian population.” The Board also considered your “impeccable” service “as far as my job and duty” were concerned. Lastly, the Board considered your contention that the use of marijuana by PTSD patients has been legalized in therefore this “qualified me for a discharge upgrade.” However, the Board concurred with the AO’s determination that there was insufficient evidence in the record to attribute your misconduct and drug abuse to a mental health condition. The Board determined additional post-service records describing your mental health diagnosis and its specific link to your military misconduct were required. In the end, the Board determined there was insufficient evidence to establish an error or injustice that warrants an upgrade to your characterization of service. 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, 5/5/2020