Docket No: 9616-19 Ref: Signature Date Dear : 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 5 February 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, an Advisory Opinion (AO) from a qualified mental health provider, 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) (Kurta Memo, Hagel Memo, and Wilkie Memo collectively, “Clemency Memos”). You enlisted in the Navy on 15 June 1982. Your pre-enlistment physical and medical history noted no psychological or neurological conditions or symptoms. On 17 June 1982 you acknowledged receiving a briefing at initial recruit training on the Navy’s policy on drug abuse and the consequences of drug trafficking. On 6 June 1984, contrary to your pleas, you were convicted at a Special Court-Martial of conspiracy to distribute cocaine, the wrongful distribution of cocaine, and wrongfully possessing cocaine with the intent to distribute. You were sentenced to confinement for six months, forfeitures of pay for six months, and a reduction in rank to the lowest enlisted paygrade (E-1). Shortly after your release from confinement, on 8 November 1984 you were notified that you were being processed for an administrative discharge by reason of misconduct due to drug abuse. You elected your rights to consult with counsel and to present your case to an administrative separation board (Adsep Board). On 4 January 1985 an Adsep Board convened in your case. At the Adsep Board you were represented by a Navy Judge Advocate. Following the presentation of evidence and witness testimony, the Adsep Board members unanimously determined that you the committed misconduct as charged. Subsequent to the unanimous misconduct finding, the Adsep Board members recommended that you be separated from the naval service with an other than honorable (OTH) characterization of service. Ultimately, on 12 February 1985 you were discharged from the Navy with an OTH characterization of service and assigned an RE-4 reentry code. On 14 December 1987 the Naval Discharge Review Board (NDRB) determined that your OTH discharge was proper as issued and that no change was warranted. As part of the Board review process, the Board’s Physician Advisor who is a licensed clinical psychologist (Ph.D.), reviewed your contentions and the available records, and issued an AO dated 28 December 2020. The Ph.D. noted that your in-service records did not contain evidence of a PTSD diagnosis or evidence of psychological/behavioral changes indicating any mental health condition or early PTSD symptoms. The Ph.D. observed that in neither your testimony at the Adsep board nor your NDRB review did you mention any mental health symptoms (e.g., difficulty sleeping) which were the basis for your post-service PTSD diagnosis. The Ph.D. concluded by opining that although you carry a post-service PTSD diagnosis, the evidence failed establish you suffered from service-connected PTSD, or that your misconduct could be attributed to PTSD or any other mental health condition. The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in your case in accordance with the Clemency Memos. These included, but were not limited to: (a) you accept full responsibility for your actions leading to your discharge, (b) your record since your discharge demonstrates that your conviction was an out-of-character, isolated incident, (c) other than your conviction, you have an exemplary service record, (d) an in-service diagnosis is not required to prove you were suffering from mental health conditions on active duty, (e) the Department of Veterans Affairs (DVA) has granted you service-connection for PTSD, and (f) upgrading your discharge status would remove the stigma associated with an OTH discharge, provide you better employment opportunities, and grant you greater access to health care. However, given the totality of the circumstances, the Board determined that your request does not merit relief. In accordance with the Clemency Memos, 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, the Board concluded that there was no nexus between any PTSD or mental health-related symptoms and your misconduct, and determined that there was insufficient evidence to support the argument that any such mental health conditions mitigated the misconduct that formed the basis of your discharge. Even under the liberal consideration standard, the Board concluded that your serious misconduct was not due to mental health-related conditions or symptoms. Moreover, even if the Board assumed that your misconduct was somehow attributable to any mental health conditions, the Board unequivocally concluded that the severity of your misconduct outweighed any and all mitigation offered by your mental health conditions or related symptoms. The Board also determined that the evidence of record did not demonstrate that you were not mentally responsible for your conduct or that you should otherwise not be held accountable for your actions. The Board determined that characterization under OTH conditions is generally warranted for misconduct and is appropriate when the basis for separation is the commission of an act or acts constituting a significant departure from the conduct expected of a Sailor. Lastly, absent a material error or injustice, the Board generally will not summarily upgrade a discharge solely for the purpose of facilitating DVA benefits, or enhancing educational or employment opportunities. The Board carefully considered any matters submitted regarding your post-service conduct and accomplishments, however, even in light of the Wilkie Memo and reviewing the record holistically, the Board still concluded that given the totality of the circumstances your request does not merit relief. Accordingly, the Board determined that there was no impropriety or inequity in your discharge, and even under the liberal consideration standard, the Board concluded that your serious misconduct merited your receipt of an OTH. 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,