DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 8532-19 Ref: Signature Date 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 you did not file your application in a timely manner, the statute of limitation was waived in accordance with the 25 August 2017 guidance from the Office of the Under Secretary of Defense for Personnel and Readiness (Kurta Memo). A three-member panel of the Board, sitting in executive session, considered your application on 22 January 2021. 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 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, 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). The Board also considered an advisory opinion (AO) from a qualified mental health professional dated 9 December 2020 and your rebuttal statement and documentation of 17 December 2020 which was received on 12 January 2021. You enlisted in the Navy on 7 December 1994. On 26 May 1995, you received nonjudicial punishment for a five-day unauthorized absence and larceny. On 6 June 1995, 21 August 1995, and 25 September 1995, the Navy Drug Lab reported positive urinalysis results. On 3 July 1995, you were determined to be dependent on cocaine. Your record is incomplete in that it does not contain your notification of administrative separation processing. However, your commanding officer (CO) referenced your notification on 31 October 1995, in his recommendation to the Separation authority (SA) for your separation with an other than honorable (OTH) characterization of service by reason of misconduct due to drug abuse and commission of a serious offense. According to the recommendation, you waived your procedural rights with regard to your administrative separation processing. The SA approved the recommendation and directed your discharge with an OTH characterization of service by reason of misconduct. On 8 December 1995, you were discharged. As part of the Board’s review, a qualified mental health professional reviewed your request and provided the Board with an AO on 9 December 2020. The AO states your civilian records reflect you have been diagnosed with various mental health conditions such as PTSD, depression, and bipolar but none of the providers linked the diagnoses to your military service or misconduct. Further, the AO states it is unclear whether any of the positive drug tests were the result of self-medication to cope with distressful memories and flashbacks. Additionally, the AO states cocaine would not be an expected substance to use if one suffers from trauma or anxiety because, as a stimulant, cocaine would result in increased heart rate and many of the physical sensations typically feared by persons who suffer flashbacks and intrusive thoughts. Based on the available evidence, the AO concluded that although you carry a post-discharge diagnosis of PTSD, the preponderance of available evidence fails to establish you were diagnosed with PTSD in connection to your military service or that your in-service misconduct could be attributed to PTSD or other mental health condition. Your rebuttal to the AO was received on 12 January 2021 and provided to the Board for consideration. The Board carefully reviewed your application, weighed all potentially mitigating factors, and considered your contention that, as a result of your mental health condition which was brought on by your military service, you began to self-medicate to treat the symptoms which led to your positive drug tests and your eventual discharge. The Board further considered your contention that your application meets the standards provided in the Kurta Memo in that you have a mental health condition which existed during service and excuses/mitigates and outweighs the discharge. The Board also considered your contention that an OTH characterization does not accurately reflect your time in service which, until your positive drug tests, was honorable, and that your OTH discharge unjustly deprives you of the recognition and resources you deserve and require. Further, the Board considered each of the factors you specifically mentioned from the Wilkie Memo and your contention that, applying these factors, it is clear that each weigh in favor of upgrading your discharge. Lastly, the Board considered your statement regarding your post-Program. Unfortunately, even under the liberal consideration standard, determined your misconduct warranted an OTH character of service. The Board, relying on the AO, concluded there was insufficient evidence of an error or injustice that warrants upgrading your characterization of service. 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 discussed above and your desire to upgrade your discharge, change your narrative reason for separation, and amend your separation code. Based upon this review, the Board concluded these potentially mitigating factors were insufficient to warrant relief. Specifically, the Board determined your misconduct 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, 1/28/2021 Executive Director