DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 8936-19 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 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 15 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 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 16 December 1985. On 7 January 1987, you received nonjudicial punishment (NJP) for a period of unauthorized absence (UA) for approximately 24 hours. In July 1987, you were arrested by civilian authorities in for attempting to steal a pair of men’s shorts from a clothing store while intoxicated. On 29 July 1987, you received NJP for attempts, three specifications of UA totaling 16 days, and disorderly conduct (drunkenness). On 22 August 1987, you were notified of administrative separation proceedings against you, and you waived your right to appear before an administrative separation board. On 23 August 1987, you received an NJP for failure to go to restricted muster, disobeying a commissioned officer, disobeying a petty officer, and disobeying a lawful order. Administrative Remarks dated 31 August 1987 reflect that you were being recommended for administrative separation due to misconduct, on the basis of a pattern of misconduct and commission of a serious offense. On 18 December 1987, you were found guilty at special court martial for violating Uniform Code of Military Justice, Article 86 (three specifications for failure to go to your appointed place of duty), Article 92 (failure to obey a lawful order), Article 107 (three specifications of false official statement), Article 112a (wrongful use of cocaine), and Article 121 (two specifications, stealing a Minolta camera, Minolta lens and Maxina 2900 flash unit and an honorable discharge certificate and DD Form 214). The Court sentenced you to confinement for five months, forfeiture of $200 pay per month for five months, and a bad conduct discharge. On 25 April 1989, the Navy Appellate Leave Activity affirmed the sentence of the special court martial, and you were issued a Bad Conduct Discharge and a reentry (RE) code of RE-4. In your application to the Board, you request an upgrade from the bad conduct discharge to an honorable under medical conditions discharge. You state that you suffered from Major Depressive Disorder and Anxiety due to injuries incurred in the Navy. You submit a copy of the Kurta memorandum for the Board, and include a personal statement with information about your family background, joining the Navy, and marrying young due in part to getting a young woman pregnant. You state that you had difficulty with a vendor in after the vendor refused to give you your money back, and you were arrested and turned over to military custody. You also state that you missed muster when you had flight issues on the way home. Additionally, you note that you and your spouse faced significate racism in , your wife was in a serious vehicle accident, your apartment caught on fire, and your daughter suffered from smoke inhalation. You state that you were offered cocaine that you could smoke, and you were immediately hooked. Afterward, you had to send your wife and daughter back to while you lived on base. Since your discharge, you have been homeless, have been incarcerated, do not have health insurance and can barely keep a job. You state that you have not used cocaine in 10 years, go to church, maintain a part time job, and volunteer. You provide character letters, which note your leadership, work performance, and your faithfulness. The Board noted that your application for correction raises a potential issue of a mental health condition due to your time in . In a communication dated 9 October 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 dated 14 December 2020. The Advisory Opinion noted that your available records do not contain evidence of a diagnosis of PTSD or psychological/behavioral changes which may have indicated any mental health conditions. The Advisor Opinion considered that you presented with noticeable issues with alcohol use but determined that there is no evidence linking your post-service diagnosis to your military service or to your misconduct. The Advisory Opinion concluded that the evidence fails to establish that you exhibited behaviors associated with a mental health condition as a result of your military service or that your misconduct may be mitigated by your post-service mental health conditions. The Advisory Opinion 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 part in accordance with the Wilkie Memo, the Hagel Memo, and the Kurta Memo. These included, but were not limited to your contentions that: you suffered from depression and anxiety due to your personal struggles at the the pressures you were under when you tried cocaine that you could smoke. The Board also noted that you have made significant efforts since your discharge to overcome your substance abuse issues, attend church, have the support of members in your community, and hold a part-time job. The Board also considered that you do not have health care, and raise issues of mental health conditions. The Board carefully weighed the available evidence, and concurred substantively with the Advisory Opinion to determine that there is insufficient evidence to support a determination that your misconduct was mitigated by a mental health condition at the time of your military service. Based on the misconduct reflected in your record, to include three NJPs and a special court martial conviction, the Board found that your bad conduct discharge characterization was issued without error or injustice. The Board considered your request for a medical discharge but noted that The Board noted that SECNAVINST 1850.4 series states processing discharge due to misconduct take precedence over processing for disability. Even in consideration of your assertion of suffering from a mental health condition while in the Navy, the Board found that your misconduct as evidenced by your NJPs and special court martial conviction was an appropriate basis for your discharge. The Board found that even in consideration of your post-discharge achievements in both your personal life and your community, the Board found that an upgrade is not appropriate as a matter of clemency. The Board concluded that your record does not reflect an error or an injustice, and that a change to your discharge characterization is not warranted. 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, Executive Director