Docket No: 8838-19 Ref: Signature date Dear This letter is in reference to your interest, as counsel, in the application of your client, , for correction of his 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 in the discharge. Consequently, his application has been denied. Your client’s application was last before this Board on 8 April 2019, when a three-member panel, sitting in executive session, originally considered his application. That panel denied your client’s application in its 29 July 2019 correspondence (“July decisional letter”). Later, on behalf of your client, you requested that the Board reopen and reconsider his application based on your contention that the panel considered erroneous information in the record. Specifically, you contended that the materials considered by the previous panel included a 4 October 2018 advisory opinion (AO) that considered and referenced unrelated records of another former Service member. The Board, finding good cause, exercised its discretion and granted your request to reopen and reconsider the case. A separate three-member panel of the Board, sitting in executive session, conducted a de novo review of your client’s application on 25 September 2019. The names and votes of the members of the second panel will be furnished upon request. Your client’s 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 client’s application, together with all material submitted in support thereof, relevant portions of his naval record, and applicable statutes, regulations, and policies. In addition, the Board considered the enclosed 30 October 2018 advisory opinion (AO) furnished by a qualified Navy mental health professional, which was previously provided to you, and your client’s rebuttal and supporting materials. At your request, the Board did not consider the erroneous material noted above, or the Board’s July decisional letter. Your client requests an upgrade of his characterization of service on the basis that he suffered from unrecognized post-traumatic stress disorder (PTSD) at the time of his military service. His request was fully and carefully considered by the Board in light of 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, the “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,” memorandum of 25 August 2017, 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.” On 13 May 1989, before his 19 July 1989 entry to active-duty service, your client certified on the USN Alcohol and Drug Screening Certificate that he had not used marijuana in the past. On 6 August 1993, he received nonjudicial punishment (NJP) for unauthorized absence and making a false official statement. Subsequently, he received a retention counseling warning that further misconduct could result in administrative separation processing. On 8 September 1993 and 24 March 1994, your client qualified as a scuba diver to the depth of 130 feet on air. On 1 May 1994, he was involved in a diving incident that resulted in his evacuation to a recompression chamber at an In conjunction with the diving injury, your client was diagnosed with Wolff-Parkinson-White Syndrome, a heart disorder that had not been discovered during any previous civilian or military physical examinations. Shortly after this diagnosis, he was assigned to shore duty in On 5 January 1995, your client received NJP for wrongful use of marijuana, as evidenced by the positive urinalysis of his urine sample taken on 30 November 1994 aboard Naval Hospital, . On 12 December 1994, the urinalysis results reported positive for the metabolite for THC at “33 ng/ml,” or more than twice the level of the Department of Defense “15 ng/ml” cutoff. Before accepting NJP, your client was afforded, and waived, his rights to consult with legal counsel and demand trial by court-martial. On 9 January 1995, he appealed the NJP. At your client’s request, his urine sample was retested on 23 January 1995, and was again positive for the metabolite for THC at 33 ng/ml. On 11 January 1995, the commanding officer (CO) of the forwarded your client’s appeal to the general court-martial convening authority (GCMCA), recommending denial of his appeal. On 20 January 1995, the GCMCA found that the evidence supported the CO’s determination that your client committed the charged offense and that his punishment was appropriate to the circumstances, and denied your client’s appeal. On 23 January 1995, administrative discharge action was initiated to separate your client from the naval service for misconduct due to due to drug abuse, and misconduct due to commission of the serious offenses of unauthorized absence (UA) and making a false official statement. At that time, your client elected to be represented by legal counsel and have his case heard before an administrative discharge board (ADB). He appeared before the ADB with legal counsel on 3 February 1995. In your client’s sworn testimony before the ADB, he stated that he “had no reason to believe that it was not [his] urine that was tested,” and that he “trust[ed] the Navy policies and . . . the urine testing,” but he contended that “something had to have gone wrong,” that is “not the type of person [he is],” “not the type of atmosphere [he has] ever been around,” “not something that [he] would ever do,” and “that [he] have never used illegal drugs.” Regarding your client’s UA and false official statement, he testified that he thought that he was “being made an example of.” On 3 February 1995, the ADB unanimously determined by a preponderance of the evidence that your client had engaged in “Misconduct” (1) “ Due to Drug Abuse,” and (2) “Due to a Serious Offense for Unauthorized Absence and False Official Statement.” The ADB unanimously determined that the “misconduct” warranted separation. The ADB unanimously determined that the “misconduct” warranted a separation characterized as other than honorable (OTH). Your client and his military counsel were informed that the deadline for submission of any additional matters to the ADB was 21 February 1995. On 22 February 1995, the CO forwarded your client’s case to the separation authority stating that the ADB found that his misconduct warranted a separation characterized as OTH. On 1 March 1995, the CO received the 21 February 1995 correspondence from your client’s military counsel raising purported discrepancies with the urinalysis testing underlying his separation for misconduct due to drug abuse. On 2 March 1995, the CO explained to the Bureau of Naval Personnel that your client was being separated for misconduct due to drug abuse “and for commission of a serious offense.” He further explained that the purported testing discrepancy had no impact or effect regarding your client’s “second screening assay nor either of the confirmatory tests” in his case. The CO reiterated that your client should be separated from the naval service with an OTH characterization of service. On 14 March 1995, the separation authority directed that your client be discharged with an OTH characterization of service, and he was so discharged on 20 March 1995. As part of the Board’s review, a qualified Navy mental health professional reviewed your client’s request and provided the Board with the 30 October 2018 AO regarding his assertion that he suffered from PTSD during his service. As previously indicated, your client’s previous submissions to the Board were considered by this panel, as well as his response to this AO. The AO noted inconsistencies in your client’s statements and the record, making it difficult to render an opinion. In particular, the AO noted inconsistencies in his narratives of the traumatic event (the May 1994 diving incident), the timeline of his hospitalization, and his description of his misconduct. The AO determined that a review of the record did not clarify that your client’s experience during the diving accident meets the PTSD criteria for a traumatic event, but that his civilian provider determined that the event does meet those criteria. The AO noted that records of treatment with that provider were not available for review, and that post-service treatment records would potentially clarify some of the inconsistencies. Given the foregoing, the AO stated that it seemed clear from the record that your client “experienced a difficult and emotionally challenging ordeal being rescued from a diving accident, evacuated to a foreign hospital [ and diagnosed with a congenital cardiac disorder [Wolff-Parkinson-White syndrome] that necessitated a change in his Navy career, since he could no longer dive or be a submariner.” The AO also noted that, on discharge from hospitalization, your client “denied experiencing symptoms of depression or worry, nervous trouble of any sort, or any psychiatric abnormalities.” The AO determined that it is “plausible that the Petitioner, feeling isolated and somewhat lost amidst changes to his career, could have used marijuana during the time of stress.” The AO opined that it “seems reasonable to conclude that the Petitioner’s in-service [November 1994] marijuana use could be attributed to a mental health condition that he was experiencing in the aftermath of his [May 1994] diving accident and subsequent change in duty station [shore duty aboard However, the AO further opined that “Petitioner’s August 1993 [nonjudicial punishment] NJP [for unauthorized absence and making a false official statement] cannot be attributed to a mental health condition developed subsequent to the [May 1994] diving accident.” The Board carefully weighted all potentially mitigating factors in your client’s case, including his desire to upgrade his discharge, his post-service comportment and accomplishments, his May 1994 diving accident and the resulting trauma, his in-service diagnosis of Wolff-Parkinson-White syndrome and the effect it had on him and his naval career, his civilian mental health care provider’s diagnosis of PTSD, that the PTSD may be connected to his May 1994 diving accident and may have caused or contributed to his subsequent use of marijuana in November 1994, that his PTSD went undiagnosed and untreated for decades, and his contention that his in-service drug use was in response to his undiagnosed PTSD. The Board, however, concluded that, under the totality of the circumstances, these factors and assertions were insufficient to demonstrate a probable material error or injustice warranting a change to your client’s discharge. As a threshold matter, the Board noted that your client’s 1995 ADB unanimously determined that he committed misconduct due to drug abuse, and misconduct due to commission of a serious offense for his unauthorized absence and false official statement (made to his ship’s executive officer during the course of that official’s investigation of your client’s unauthorized absence), and that the misconduct warranted his separation from the naval service. Moreover, contrary to your client’s assertions that these were “minor” offenses, the ADB specifically determined that he committed misconduct due to commission of the “serious offense[s]” of unauthorized absence and false official statement. Pursuant to applicable statutes, regulations, and policies, both then and now, either basis of misconduct (drug abuse or commission of a serious offense), supports discharge from the naval service with an OTH characterization of service. Your client’s application to this Board is devoted largely to contending that his undiagnosed, in-service PTSD from his May 1994 diving accident mitigated his November 1994 marijuana use—drug use the Board noted he adamantly denied in his sworn testimony before the ADB (testifying, for example, that he had “never used drugs”), but later admitted to committing before his enlistment, and during and after his service. Accordingly, even applying liberal consideration, the Board was not persuaded that your client’s now-admitted drug use in November 1994 was solely the result of the May 1994 dive accident or that he was not responsible for his actions. The Board also noted that your client’s PTSD or drug use does not in any way implicate his separation based on misconduct due to commission of a serious offense. He does not meaningfully address his misconduct due to commission of a serious offense, which, as previously indicated (and contrary to his contentions in his 27 November 2018 rebuttal package), is an equal and independent basis for both his separation and his OTH characterization of service. Moreover, assuming, arguendo, that he may have had undiagnosed PTSD from his May 1994 diving accident, and that the PTSD may have contributed to his November 1994 drug use, the Board substantially concurred with the AO’s determination that your client’s May 1994 PTSD cannot be said to have caused or mitigated the serious offenses he committed in August 1993. The Board also considered exercising its discretion and granting clemency in this case based on your client’s post-service accomplishments. The Board also considered the material and unexplained discrepancies, inconsistencies, and omissions in his narrative regarding his misconduct and his diving accident, as well as his apparent lack of candor with the ADB while testifying under oath. And while he does not contend that his apparently deceptive testimony before the ADB was in any way caused by his PTSD, the Board noted that he was also deceptive prior to his ADB and May 1994 trauma, as evidenced by his August 1993 NJP for making a false official statement to his executive officer. Accordingly, the Board declined to exercise its discretion and grant clemency in this case given the seriousness of your client’s repeated misconduct and his apparent lack of candor. For the foregoing reasons, the Board denied his application. It is regretted that the circumstances of your client’s case are such that favorable action cannot be taken. He is entitled to have the Board reconsider its decision upon submission of new matters, which will require him 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.