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 12 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).   
 
You enlisted in the Navy on 30 December 1996.  Your pre-enlistment physical examination and medical history both noted no psychiatric or neurologic conditions or symptoms.  On 27 January 1998 you received non-judicial punishment (NJP) for the drunken operation of a vehicle (DUI).  On the same day you were also issued a “Page 13” counseling sheet documenting the NJP and warning you that any further misconduct may result in disciplinary actions and/or processing for administrative separation. 
  
On 17 February 1998 you were admitted to the Level III inpatient alcohol rehabilitation  
treatment program (Level III).  On 20 March 1998 you completed the Level III treatment program and were placed in an outpatient Level III Aftercare program (Aftercare).   
 
However, on 29 April 1998 you received NJP for unauthorized absence and being drunk on duty.  On 20 June 1998 you were arrested for DUI by the  Patrol.  On 18 September 1998 you received NJP for:  (a) the failure to obey a lawful order, and (b) the wrongful use, possession, introduction, and importation of a controlled substance for which you did not have a prescription.   
 
On 18 September 1998 you were notified that you were being processed for an administrative discharge by reason of misconduct due to drug abuse, the commission of a serious offense, a pattern of misconduct, and alcohol abuse rehabilitation failure for being an Aftercare failure.  You elected your right to consult with counsel, but expressly waived your rights to submit a written statement and to request an administrative separation case.  In the interim, on 23 September 1998 the Substance Abuse Rehabilitation Department at Naval Medical Center   diagnosed you with alcohol dependency in early partial remission and prescription narcotic abuse.  Ultimately, on 11 December 1998 you were separated from the Navy with an other than honorable conditions (OTH) discharge.  On 20 July 2000 the Naval Discharge Review Board determined that your discharge was proper and that no change in characterization was warranted. 
 
As part of the review process, the BCNR Physician Advisor who is also a medical doctor (MD) and a Fellow of the American Psychiatric Association, reviewed your mental health contentions and the available records and issued an AO dated 5 January 2021.  The MD observed that during your separation physical on 30 July 1998 the examining physician did not consider any of the medical or mental health issues cited by you as disqualifying and deemed you fit for separation from active duty.  The MD noted that the remainder of your in-service records did not reveal any evidence of additional medical conditions or psychological symptoms or behavioral changes indicating a mental health condition.  The MD also noted, contrary to your contentions, that your available in-service records did not contain direct evidence of a 1997 physical assault and subsequent hospitalization, nor of any purported 1998 psychiatric hospitalization at NMCSD.  The MD further noted that your in-service records did not contain evidence indicating any psychological/behavioral changes that may have indicated PTSD or traumatic brain injury (TBI).  The MD observed that you did not present any evidence to support your contention of service-connected PTSD or TBI, nor any evidence of a post-discharge diagnosis of PTSD or TBI.  The MD concluded by opining that there was insufficient objective evidence you incurred service-connected TBI or PTSD or that your misconduct was mitigated by any other mental health conditions. 
  
The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in your case in accordance with the Kurta, Hagel, and Wilkie Memos.  These included, but were not limited to your contentions that:  (a) you believe your record is in error because of your mental health issues; (b) you were beaten by five individuals in town in an altercation and believe you suffered a TBI that resulted in you suffering from PTSD and other factors; (c) you had reconstructive surgery on your face, there was brain swelling and multiple lacerations and contusions, and you were never the same person after this incident and you continue to have issues with this TBI to this day; (d) you went undiagnosed with TBI, PTSD, and bi-polar disorder; (e) you were in a motorcycle accident in August 1998 and broke your back where you were hospitalized and placed in the psychiatric unit a NMCSD; (f) you believe your discharge should be upgraded so you can receive VA benefits; and (g) you were treated unfairly when you were discharged in December 1998.  However, given the totality of the circumstances, the Board determined that your request does not merit relief. 
 
In accordance with the Kurta, Hagel, and Wilkie 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 TBI 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 or symptoms 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.  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 did not believe that your record was otherwise so meritorious as to deserve a discharge upgrade and determined that Sailors should receive no higher discharge characterization than is due.  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,