DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Dear Petitioner: 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 limitations 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 10 September 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, 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). Additionally, the Board also considered the advisory opinion (AO) furnished by a qualified mental health provider, which was previously provided to you. You were afforded an opportunity to submit an AO rebuttal and you did do so. The Board determined that your personal appearance, with or without counsel, would not materially add to their understanding of the issues involved. Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record. You enlisted in the Marine Corps on 27 August 2002. Your pre-enlistment physical examination on 30 July 2002 and self-reported medical history both noted no psychiatric or neurologic conditions or symptoms. On 10 November 2004 you received non-judicial punishment (NJP) for the wrongful use of a controlled substance (marijuana). You did not request a trial by court-martial for this offense as it was your right to do prior to accepting NJP. You did not appeal your NJP. On 25 February 2005 you were notified of administrative separation proceedings by reason of misconduct due to drug abuse. You consulted with military counsel and elected to waive your rights to submit a written statement on your behalf and to present your case to an administrative separation board. Ultimately, on 8 April 2005 you were discharged for drug abuse with an other than honorable conditions (OTH) characterization of service and assigned an RE-4B reentry code. On 23 August 2007 the Naval Discharge Review Board (NDRB) determined that your OTH discharge was proper as issued and no change was warranted. You did not present the NDRB with any medical or mental health contentions for consideration with your application. On 22 March 2020 the VA granted you a service-connection for PTSD with a 70% rating. As part of the Board review process, the BCNR Physician Advisor who is a medical doctor and Fellow of the American Psychiatric Association (MD), reviewed your contentions and the available records and issued an AO dated 28 June 2021. The MD initially observed that although you contended you had PTSD compounded by significant Percocet use for back pain, you did not attribute your misconduct to any mental health conditions, nor did your describe any in-service traumatic events, psychological symptoms, occupational impairment, or any linkage between your misconduct and a mental health condition. The MD also noted that your VA disability determination and medical documentation did not provide any clinical details describing how you met criteria for the diagnoses, the clinical course of your conditions, when such symptoms started, a relationship to your military service, or any linkage to your active duty misconduct. The MD determined that your in-service records did not contain evidence of a mental health diagnosis or psychological/behavioral changes indicating a mental health condition. The MD also noted that you denied your drug use was a result of self-medication for a mental health conditions, but rather you contended your pain medications caused you to not be cognizant of the consumption of other drugs on active duty. The MD determined that although you have a post-discharge PTSD diagnosis, you did not provide enough information to establish an onset and development of mental health symptoms, or identify a nexus with your in-service misconduct. The MD concluded by opining that the preponderance of objective evidence failed to establish you were diagnosed with or suffered from a mental health condition on active duty, or that your misconduct could be mitigated by a 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 Kurta, Hagel, and Wilkie Memos. These included, but were not limited to your contentions that: (a) you were under a severe dosage of Percocets each day for pain and was not aware of the consumption of any other drugs while in service; (b) you were not cognizant of waiving your rights to an administrative separation board on active duty; (c) you believe your discharge was improper and unjust; (d) your failed urinalysis was the result of an over-prescription of pain medications; (e) you took a 4-hour road trip with your brother and three of his friends and the entire time your brother and his friends smoked a large amount of marijuana with the windows closed for the entire trip; and (f) you were too far under the influence of prescription drugs to get out of the car. 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 PTSD and/or related symptoms and your misconduct, and determined that there was insufficient evidence to support the argument that any such mental health conditions were related to or mitigated the misconduct forming the basis of your discharge. As a result, the Board concluded that your misconduct was not due to mental health-related conditions or symptoms. The Board also concluded, despite your contention of being overprescribed Percocet, 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. Further, the Board noted that you did not even attribute your positive urinalysis to any mental health issues or symptoms. The Board also noted that innocent ingestion would have been an affirmative defense to the wrongful use of a controlled substance, however, the Board unequivocally determined that your “passive inhalation” defense to your drug use was neither credible nor persuasive. Moreover, the Board observed that you did appeal your NJP or demand a trial by court-martial for your drug use in lieu of accepting NJP. Exercising either such option would have allowed you to fully present your affirmative defense and potentially receive a more favorable outcome had such defense been deemed believable and credible. The Board also concluded, contrary to your contentions, you knowingly and willfully waived your right to present your case to an administrative separation board. Your service record indicated that on 25 February 2005 you consulted with a Marine Corps Judge Advocate and you subsequently waived your right in writing to an administrative separation board. Additionally, the Board 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. The Board noted that, although one’s service is generally characterized at the time of discharge based on performance and conduct throughout the entire enlistment, the conduct or performance of duty reflected by only a single incident of misconduct may provide the underlying basis for discharge characterization. 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 Marine. Lastly, absent a material error or injustice, the Board declined to 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 pattern of 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, 9/24/2021 Executive Director