DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490

Docket No: 1720-21            
Ref: Signature Date 
          
Dear Petitioner: 
 
This 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 the evidence submitted was 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 20 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 considered a 2 July 2021 advisory opinion (AO) furnished by a qualified mental health provider, a copy of which was provided to you and to which you did not provide a response. 
 
You enlisted in the Navy and commenced a period of active duty on 2 February 1982.  On 4 February 1982, you acknowledged, in writing, the Navy’s policy forbidding the use of illegal drugs.  On 16 January 1983, you received nonjudicial punishment for using marijuana aboard your ship, and you also received a formal written warning concerning your use of marijuana. On 17 January 1983, you were evaluated at the  , and it was determined that you were not dependent on drugs.  In December 1983, your command received a notification that you tested positive for use of marijuana.  On 12 December 1983, you were notified of the initiation of administrative separation processing and your rights in connection therewith.  You waived his right to an administrative discharge board.  On 14 December 1983, you received nonjudicial punishment again for use of marijuana.  On 15 December 1983, you underwent another substance abuse evaluation, which found that you were not dependent on drugs.  On 15 December 193, your commanding officer recommended to the discharge authority that you be discharged with an other than honorable characterization of service.  On 31 December 1983, the discharge authority directed that you be discharged with an other than honorable characterization of service, and on 6 January 1984, you were so discharged.   
 
In 1985, you filed an application for review of your discharge with the Naval Discharge Review Board (NDRB).  The contentions that you made in support of that application, if any, are not available, but your application was denied on 31 January 1985.  In 1990, you filed another application with the NDRB, in which you contended that your discharge was inequitable in that you were not offered the chance at rehabilitation.  On 14 November 1990, the NDRB determined that your discharge was proper as issued.  In its decision document, the NDRB noted that, you were not offered drug rehabilitation because you were found not to be dependent on drugs.  The NDRB also observed that upon your entry into the Navy, you admitted to pre-service use of marijuana two times per month. 
 
The Board carefully considered all potentially mitigating factors in your petition to determine whether the interests of justice warrant relief in your case including in accordance with the Wilkie Memo.  You contend that your discharge was inequitable because it was unfair at the time it occurred and that it was also procedurally defective.  You also contend that your discharge is unfair now because you were never afforded the opportunity to rehabilitate.  In addition, you assert that administrative separation processing should not have been initiated until you had been notified formally concerning performance deficiencies related to a physical or behavioral condition and advised of medical resources (if applicable) that may assist you in retention, and that your commanding officer was required to provide you reasonable time to overcome your deficiencies.  You state that in your case, a rush to judgment that there was a problem that could not be fixed, and the command jumped to the conclusion that you should be dismissed as it was not in the best interest of the service.  Finally, you state that you were young and impressionable while you were in the Navy and your command did not reach out to find out if there was any way that they could have helped to guide you.   
 
In connection with your assertion of a mental health condition, the Board reviewed the AO, which explained that: 
  
Petitioner’s in-service records did not contain evidence of a diagnosis of a mental health condition.  Petitioner contended he developed a mental health condition during his military service; however, he did not provide a post-discharge diagnosis or a description of his symptoms and how they affected his ability to perform his duties.  The lack of information made it difficult to establish a timeline of onset and development of mental health symptoms or identify a nexus with his in-service misconduct. 
 
The AO concluded, “it is my considered clinical opinion the preponderance of available objective evidence failed to establish Petitioner was diagnosed with a mental health condition, suffered from a mental health condition at the time of his military service, or his inservice misconduct could be mitigated by a mental health condition.”   

Based upon its review, the Board concluded the potentially mitigating factors that you raised were insufficient to warrant relief.  The Board observed that, with respect to your contentions that your discharge was unfair, that you were not provided an opportunity to be rehabilitated, and that you were not provided notification of deficiencies, the Board determined that the facts set forth in your official military personnel file are to the contrary.  At the outset, you admitted to twice monthly marijuana use prior to your entry into the Navy.  Next, shortly after enlisting, you received a written warning concerning the Navy’s prohibition against its members using illegal drugs.  On 16 January 1983, you received nonjudicial punishment for using marijuana and you received a formal written warning for this transgression.  The next day you were evaluated by medical professionals at a Navy medical clinic, and it was determined that you were not dependent on drugs.  After this, you were given another chance to remain in the Navy.  Despite the fact that you had entered the Navy on a waiver based on drug use, and despite having signed two documents describing the Navy’s position on the use of illegal drugs, and despite having received nonjudicial punishment for the use of illegal drugs, you tested positive again for the use of marijuana.  You were then evaluated again by medical professionals, and again you were determined to no be dependent on drugs.  Thereafter you were provided all rights concerning administrative discharge processing, and you waived those rights.  Finally, with respect to your assertion that you did not received drug rehabilitation, the Board noted that you were screened twice by medical professionals, and each time you were found not to be drug dependent, and therefore, not in need of rehabilitation.  Based on these facts, the Board did not find that your assertions were supported by the documents in your OMPF and thus determined that your request did not warrant relief. 

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, 
9/20/2021
Executive Director