Dear 


This is in reference to your application for correction of your naval record pursuant to the provisions of 10 USC 1552.  Your case was reconsidered in accordance with procedures that conform to Lipsman v. Secretary of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004).  You were previously denied relief by the Board on 28 August 1987 and 18 September 2017.  In addition, your requests for reconsideration were denied on 22 June 2004 and 9 March 2006 without a hearing due to lack of new evidence.  After careful and conscientious consideration of the entire record, the Board found the evidence submitted was insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied.

A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 11 July 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 and applicable statutes, regulations and policies.  Additionally, the Board considered the advisory opinion contained in BCNR letter Docket No: NR20180010683 of 30 May 2019, a copy of which was previously provided to you for comment.

The Board carefully considered your arguments that you deserve a change to your narrative reason for separation to disability and an upgrade to your characterization of service.  You assert that you were suffering from Post-Traumatic Stress Disorder and Traumatic Brain Injury as a result of your service in the Republic of Vietnam and these conditions mitigated your misconduct.  Unfortunately, the Board disagreed with your rationale for relief.  In making their findings, the Board substantially concurred with the advisory opinion contained in BCNR letter Docket No: NR20180010683 of 30 May 2019.  Specifically, the Board found insufficient evidence that you suffered from a mental health condition that mitigated your misconduct.  Absent a diagnosis of a mental health condition that existed during your period of active duty, the Board concluded it lacked evidence to support a finding that you suffered from a mental health condition while on active duty or that a nexus existed between a mental health condition and your misconduct.  Therefore, the Board found that you were mentally responsible for your misconduct properly convicted by a General Court-Martial conviction and issued a dishonorable discharge.  Accordingly, the Board considered your application as a request for clemency.  In considering your case, the Board reflected on the nature of your misconduct and the sentence imposed balanced against the mitigation evidence offered in your application.  Ultimately, the Board concluded your narrative reason for separation and characterization of service remains appropriate due to the seriousness of your misconduct, i.e. your manslaughter conviction of a Vietnamese national.  In their opinion, the killing of a human being was too serious of an act to allow a change to your narrative reason for separation or characterization of service based on the evidence you presented.  Additionally, the Board considered your post discharge misconduct when considering whether clemency was appropriate and noted you were convicted for the sale of narcotics in 1973.  In the Board’s opinion this was further evidence to the Board that post-discharge clemency was not appropriate in your case.  Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to your record.

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 submission of new matters.  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.  In the absence of sufficient new evidence for reconsideration, the decision of the Board is final, and your only recourse would be to seek relief, at no cost to the Board, from a court of appropriate jurisdiction.