DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 2408-18 APR 29 2019 Dear : 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 found the evidence submitted was insufficient to establish the existence of probable material or injustice. Accordingly, 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 for Correction of Naval Records, sitting in executive session, considered your application on 7 January 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, and the 12 October 2018 Advisory Opinion (AO). Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to its 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 Navy and began a period of active duty on 20 March 2001. Your record indicates that you served without disciplinary incident for over three years. Your final evaluation covering the period from 4 March 2004 through 15 June 2004 states that within only a few months of reporting you had shown yourself to be a motivated and energetic technician. The evaluation notes that you were an excellent technician and trainer, and were involved as a leader at the command. Administrative Remarks from September 2004 note that you were not recommended for reenlistment due to misconduct. You were discharged from the Navy on l October 2004, on the basis of misconduct and were discharged with a general characterization of service and a reentry code of RE-4. Your administrative separation package was not reflected in your available service record. You request that your general (under honorable conditions) (GEN) characterization of service be upgraded to honorable (HON). You contend that your general characterization of service was issued on the basis of an undiagnosed or misdiagnosed traumatic brain injury (TBI) which caused migraines that still persist. You state that you have a post-service diagnosis from the Department of Veterans Affairs (VA) and that you have undergone vocational rehabilitation through the VA. You provided a rating decision of 14 October 2015 from the VA, (bearing a date-stamp of 16 May 2018), which states, among other things, that the VA made a finding of: (i) service-connection for organic mood disorder with an evaluation of 70%; (ii) migraines currently 50% disabling; (iii) evaluation of TBI 10% disabling; and, (iv) entitlement to individual un-employability. The VA documents reflect negative findings for post-traumatic stress disorder (PTSD). The VA documents note that you are a veteran of the Gulf War Era; the Board reviewed your history of assignments and entitlement to awards as reflected in your record. The assignments include service at ( ), ( ), ( ), ( ), ( ), and ( ); your awards include the National Defense Service Medal (date of award of 11 September O1) and the Meritorious Unit Commendation (for the period of 1 January to 31 December 2002). Your request was fully and carefully considered by the Board in light of the Secretary of Defense's Memorandum, "Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requested by Veterans Claiming Post Traumatic Stress Disorder" of 3 September 2014 and the "Clarifying Guidance to Military Discharge Review Board 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" memorandum of 25 August 2017. As part of the review process, a licensed clinical psychologist reviewed your assertions and the available records, and issued an AO dated 12 October 2018. The AO noted that your application and available record do not contain medical records, either from your military service or treatment records on which the VA relied when making its determination. The AO found that there is insufficient information to render a considered medical opinion as to whether the TBI can be attributable to your military service. The AO also concluded that without such records, it is not possible to render a medical opinion regarding the impact of the TBI. The AO was provided to you on 16 October 2018, and you were given 30 days in which to submit a response. When you did not provide a response within the 30-day timeframe, your case was submitted to the Board for consideration. The Board carefully reviewed your application and considered that you request an upgrade to your general characterization of service. The Board noted a general discharge is not an unfavorable or adverse discharge characterization. The Board considered the analysis of the AO, the information you provided from the VA, and the fact that the record indicates that you displayed misconduct during your active duty service. The Board found that despite consideration of your contentions and the VA's determination, there is insufficient evidence to support a finding that you should have received an HON characterization of service. The Board concurred with the AO's findings, and noted that medical records indicating the timing and nature of the TBI, as well as a medical evaluation of the condition would have been helpful in evaluating your request. The Board concluded that despite due consideration of the VA's findings, that you did not provide sufficient evidence to support an upgrade to your GEN characterization due to a mitigating medical condition. The Board determined that your discharge does not merit corrective action and that your record does not reflect an error or an injustice. When reviewing your record, the Board considered that following your discharge from the Navy, you changed your legal name from to . You provide a Court Order dated 7 June 2014, from the , Office of the , State of directing the name change. The Board noted that you did not request a change to your legal name as reflected on your Certificate of Release or Discharge from Active Duty (DD Form 214), due to an error or injustice. Accordingly, the Board did not consider whether a change to your legal name on your DD Form 214 was warranted. It is regretted that the circumstances of your case are such that favorable action cannot be taken at this time. You are entitled to have the Board reconsider its decision upon the submission of new and material evidence. New evidence is evidence not previously 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, Executive Director