DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 9638-19 Ref: Signature Date Dear Mr. 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 29 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, 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 29 July 1981. On your pre-enlistment medical history and physical examination no psychiatric or neurologic conditions or symptoms were noted. On 21 March 1983 you received non-judicial punishment (NJP) for unauthorized absence (UA) and missing movement. On 31 March 1983 you received NJP for possession of a controlled substance. On 26 October 1983 you were issued a “Page 13” retention warning (Page 13). The Page 13 expressly warned you that any further misconduct may result in disciplinary action or administrative discharge that could be categorized as other than honorable conditions (OTH). However, on 28 October 1983 you received NJP for UA and missing movement. On 1 December 1983 you received NJP for attempting to defraud the urinalysis program. On 16 December 1983 you received NJP for wrongful use of a controlled substance. On 13 January 1984 you were notified that you were being processed for an administrative discharge by reason of misconduct due to drug abuse. You expressly waived your rights to consult with counsel, submit a written statement, and to present your case to an administrative separation case. Ultimately, on 3 February 1984 you were separated from the Navy with an OTH discharge. As part of the Board review process, the BCNR Physician Advisor who is a licensed clinical psychologist (Ph.D.), reviewed your contentions and the available records and issued an AO dated 22 December 2020. The Ph.D. noted that your in-service records did not contain evidence of psychological/behavioral changes indicating any mental health condition and/or PTSD. The Ph.D. noted that throughout your disciplinary actions and administrative processing, you did not indicate you were experiencing any mental health symptoms, and there were no concerns noted warranting your referral to mental health resources. The Ph.D. also noted that although you contend you suffered from PTSD, there was no evidence linking any PTSD diagnosis to your military service or to your misconduct. The Ph.D. concluded by opining that the evidence failed to establish that your in-service misconduct is attributable 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 your contentions that: (a) you were using drugs due to PTSD; (b) you were sexually abused as a young child but was still able to perform your duties; and (c) you are requesting to receive your VA benefits. 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 misconduct was not due to mental health-related conditions or symptoms. Moreover, the Board observed that you did not submit any additional clinical documentation or treatment records to support your mental health claims despite a request from BCNR on 31 October 2019 to specifically provide additional documentary material. 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 also noted that there is no provision of federal law or in Navy/Marine Corps regulations that allows for a discharge to be automatically upgraded after a specified number of months or years. 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 VA 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 clearly 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, 2/9/2021 Executive Director