DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 9949-18 Ref: Signature Date This letter is in reference to your application for correction of your 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. 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 12 December 2019. The names and votes of the members of the panel 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, applicable statutes, regulations, and policies, as well as a 28 January 2019 advisory opinion (AO) and your rebuttal thereto. Regarding your request for a personal appearance, the Board determined a personal appearance with or without counsel will not materially add to their understanding of the issues involved. Therefore, the Board determined a personal appearance was not necessary and considered your case based on the evidence of record. You reenlisted in the Navy on 25 August 1988. On 9 December 1988, you received nonjudicial punishment (NJP) for a thirty minute unauthorized absence (UA) from your appointed place of duty. On 3 January 1989, you were apprehended by civilian authorities in for speeding, driving while intoxicated, and attaching a tag to a vehicle not assigned to it. On 10 February 1989, you received a second NJP for drunkenness. In March 1989, you were diagnosed as “drug/ETOH dependent” and received treatment at the Naval Hospital in from 23 April 1989 to 2 June 1989. On 13 July 1989, you received a third NJP for a UA of approximately two hours. According to your records, during the periods 12— 18 & 20 September 1989, you committed two periods of UA (totaling 12 hours), and tested positive for marijuana pursuant to a unit random urinalysis test. On 28 September 1989, you were notified that you were being considered for administrative action to separate you from the naval service by reason of misconduct due to drug abuse and due to your pattern of misconduct. You were advised of, and waived, your procedural rights. On 29 September 1989, you received a fourth NJP for the aforementioned two instances of UA and wrongful use of a controlled substance. That same day, your command sent a naval message requesting your administrative discharge due to misconduct due to drug abuse and a pattern of misconduct as evidenced by your four NJPs, and recommending that you be discharged with an other than honorable (OTH) characterization of service by reason of misconduct due to drug abuse and pattern of misconduct. The discharge authority approved the recommendation and directed that you be discharged with an OTH characterization of service by reason of misconduct due to pattern of misconduct. On 17 October 1989, you were so discharged. Your request for an upgrade to your characterization of service was reviewed in consideration of your contention you were unknowingly suffering from post-traumatic stress disorder (PTSD) at the time of the misconduct which ultimately led to your discharge under OTH circumstances. Your request was fully and carefully considered by the Board in light of the Secretary of Defense's 3 September 2014 memorandum, “Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requested by Veterans Claiming Post Traumatic Stress Disorder,” the 25 August 2017 memorandum, “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,” 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.” As part of the Board’s review, a Navy mental health professional reviewed your request and provided the Board with an AO on 28 January 2019. The AO stated you have been diagnosed by a civilian psychologist with PTSD and major depressive disorder which can be attributed to your military service. Additionally, the AO noted that, while in-service, you were diagnosed with what would now be called alcohol use disorder and stated there is evidence you were experiencing emotional difficulties in addition to alcohol use symptoms. The AO further stated it is “reasonable to consider Petitioner’s alcohol treatment was unsuccessful due to his concurrent mental health symptoms” and to “attribute his continued misconduct following alcohol treatment to continued mental health symptoms.” The AO was provided to you on 5 February 2019, and your rebuttal response of 21 February 2019 was submitted to the Board for consideration. The Board carefully reviewed your application, weighed all potentially mitigating factors, and considered your contention that PTSD should be considered a mitigating factor for the misconduct you engaged in that ultimately led to your OTH discharge. Specifically, the Board considered the diagnoses, comments, and opinion of your civilian mental health provider that there was a clear nexus between your mental health disorders and the conduct leading to your discharge. The Board also considered the mental health provider’s opinion that “any treatment for alcohol abuse that you received during this time in the military does not seem adequate for someone who was exhibiting trauma responses” because you “were not learning to develop coping skills to manage intrusive memories” or learning to recognize and manage your “physiological responses.” The Board also considered your “commendable overall in-service performance and model post-discharge behavior” and the numerous advocacy letters submitted on your behalf. Additionally, the Board considered your post-service achievements, such as being sober since 2006, graduating from college, as well as your involvement as an active church member and community volunteer. Additionally, the Board considered your contention that, under current procedures, you would likely have been medically discharged instead of receiving an administrative discharge with an OTH characterization of service. Specifically, the Board considered your contention that an evaluation today would have included evaluation for trauma disorders which would have resulted in treatment for both your alcohol use disorder and PTSD. The Board further considered your contention that you would likely have been administratively processed as a treatment failure resulting in a general (under honorable conditions) characterization of service. Lastly, the Board, noting the wrongful use of a controlled substance which spurred the initiation of administrative separation proceedings, considered your contention that you did not knowingly consume marijuana. Specifically, you contend that another sailor tossed a “joint” that landed in the alcoholic beverage you were drinking, which resulted in you testing positive for marijuana during the random urinalysis the following day. In your brief to this Board accompanying your application (“Brief”), you state, through counsel, that “a licensed psychologist, concluded that [you] underwent a traumatic experience during [your] Naval service that caused [your] PTSD, and that condition led to [your] alcohol abuse and ultimately to the incidents of misconduct that resulted in [your] discharge under Other than Honorable conditions.” (emphasis added). In your sworn affidavit accompanying your Brief, you state that you believe the actions against you during your second enlistment, and your OTH, resulted from your illness (PTSD), “and the alcohol dependency it caused . . . .” (emphasis added). Indeed, the entirety of your Brief and supporting documents are devoted to addressing your undiagnosed, in-service PTSD, which caused your alcohol abuse and dependence, which in turn caused or mitigated your service misconduct, resulting in your administrative separation. You were administratively separated for “misconduct due to drug abuse and pattern of misconduct as evidenced by four nonjudicial punishments.” (emphasis added). Pursuant to applicable statutes, regulations, and policies, both then and now, either basis of misconduct (drug abuse or pattern of misconduct), supports discharge from the naval service with an other than honorable characterization of service. However, you do not meaningfully address the alternative, “drug abuse,” basis for your separation – other than contending that you did not knowingly use a controlled substance. On 3 September 1985, you acknowledged in writing that you had been briefed on the “Navy policy on Drug and Alcohol abuse as set forth in OPNAVINST 5350.4,” the “legal consequences of illicit drug use,” and “the Navy’s urinalysis screening program.” On 29 September 1989, after having tested positive as a result of a unit random urinalysis test, you were found guilty of, among other things, a violation of Article 112a, Uniform Code of Military Justice (UCMJ), wrongful use of a controlled substance (marijuana). In your sworn statement, you state that you did not “knowingly consume any marijuana,” but that while drinking on liberty, “another [unidentified] sailor tossed a marijuana joint that landed in the alcoholic beverage [you were] drinking at the time,” and that the next day you were “subject to a random urinalysis and [you] tested positive for marijuana.” At no point do you admit to wrongful drug use on this occasion or at any time during your military service. At no point do you contend that wrongful drug or marijuana use was a part of your means of self-medicating due to PTSD. At no point do you or any medical professional attribute your NJP for wrongful drug use to self-medication due to PTSD. Nor do you explain how a “marijuana joint” landing in your alcoholic beverage caused you to ingest marijuana – let alone in sufficient quantity to test positive for THC at the levels required under Navy mass spectrometry analysis. Rather, you simply contend, under oath, that your ingestion of this controlled substance was unknowing and by this method. However, you were found guilty at NJP in September 1989 by a preponderance of the evidence and, after three decades, the Board is not persuaded to disturb that finding. Assuming, arguendo, that you had undiagnosed, in-service PTSD at the time of your misconduct, after thorough consideration of your contentions and mitigating factors, the Board, applying liberal consideration, determined that your PTSD did not mitigate the drug-related misconduct which led to your discharge. The Board noted that the command did not pursue administrative separation processing after your 13 July 1989 NJP, which by your statement was the result of your return to alcohol, but did pursue processing over two months later after your positive urinalysis and 29 September 1986 NJP for drug use. The Board determined that the explanation for testing positive for marijuana contained in your sworn personal statement was neither plausible nor supported by your submission. Moreover, you have consistently denied wrongful use of drugs in-service – let alone ever attributing it to another form of self-medication due to your undiagnosed, in-service PTSD. As such, your PTSD cannot be said to have mitigated your wrongful drug use on this occasion, or your separation based on misconduct due to that drug abuse. As this determination is dispositive of your petition, the Board need not address the merits of your PTSD contentions or the alternate, pattern of misconduct, basis of your separation. Accordingly, under the totality of the circumstances and for the foregoing reasons, the Board in its review discerned no probable material error or injustice that warrants changing your characterization of service. It is regretted that the circumstances of your case are such that favorable action cannot be taken. You are entitled to have the Board reconsider its decision upon the 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, 3/2/2020