Docket No: 5292-19/ 
           6749-07 
Ref: Signature Date 
 
  
Dear : 
 
This letter is in reference to your reconsideration request received on 21 May 2019.  You previously petitioned the Board for Correction of Naval Records (Board) and were advised that your application had been disapproved.  Your case was reconsidered in accordance with Board procedures that conform to Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004).  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.      
 
Because your application was submitted with a new statement and contentions, the Board found it in the interest of justice to review your most recent application.  In this regard, your current request was carefully examined by a three-member panel of the Board, sitting in executive session, on 16 October 2020.  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, as well as an advisory opinion (AO) from a qualified mental health professional dated 3 September 2020. 
 
Regarding your request for a personal appearance, the Board determined a personal appearance with or without counsel will not materially add to their understanding of the issues involved.  Therefore, the Board determined a personal appearance was not necessary and considered your case based on the evidence of record. 
 
You enlisted in the Navy on 6 June 1983.  On 12 June 1984, you received nonjudicial punishment (NJP) for an unauthorized absence (UA) of less than 24 hours. On 13 September 1984, you received a second NJP for an UA of less than 24 hours.  From 21 September 1984 to 5 October 1984, you received nine Administrative Remarks (Page 13) entries documenting UA periods each morning for eight days and one UA period of 26 hours.  On 15 October 1984, you received a third NJP for failure to obey a lawful order and nine UA periods from 21 September 1984 to 5 October 1984.  Subsequently, you were notified of pending administrative separation action by reason of best interest of the service (BIOTS).  After you waived your rights, your Commanding Officer (CO) recommended you be discharged with a general, under honorable conditions (GEN), characterization of service.  On 26 November 1984, you received a fourth NJP for a three-day UA.  On 18 December 1984, you received a Page 13 Retention Warning in response to the discharge authority’s review of the command’s BIOTS separation package and decision to take no further action.  On 10 January 1985, you received a fifth NJP for two instances of UA.  You were subsequently notified of pending administrative separation action by reason of misconduct.  After you waived your rights, your CO recommended you be discharged with an other than honorable (OTH) characterization of service due to misconduct but because you had been notified using notification procedures vice board procedures, the discharge authority directed the CO to re-notify you using board procedures.  Subsequently, you were notified of pending administrative separation action by reason of misconduct due to pattern of misconduct.  After you waived your procedural rights, your CO recommended you be discharged with an OTH characterization of service due to misconduct.  The discharge authority approved this recommendation and directed discharge with an OTH characterization of service by reason of misconduct due to pattern of misconduct.  On 5 April 1985, you were discharged.   
 
Your request for a change to your characterization of service was reviewed in consideration of your contention you suffered from brief reactive psychosis.  Your request was fully and carefully considered by the Board in light of the Secretary of Defense's 3 September 2014 memorandum, “Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requested by Veterans Claiming Post Traumatic Stress Disorder,” of the 25 August 2017 memorandum “Clarifying Guidance to Military Discharge Review Boards 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,” and the 25 July 2018 memorandum, “Guidance to Military Discharge Review boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations.” 
 
As part of the Board’s review, a qualified mental health professional reviewed your request and provided the Board with an AO on 3 September 2020.  As detailed in the AO, the mental health professional opined that there was insufficient evidence of a mental health condition at the time of your enlistment attributable to your military service that may have mitigated your misconduct.  The AO was provided to you on 11 September 2020, and you were given 30 days in which to submit a response.  When you did not respond within 30 days, your case was submitted to the Board for review.    
 
The Board carefully reviewed your application, weighed all potentially mitigating factors, and considered your contention that you were discharged “without consideration of the medical and psychiatric causation of the actions which formed the basis of the disciplinary actions preceding the discharge.”  Specifically, you contend your misconduct was the “product of an undiagnosed insidious self-destructive congenital medical psychiatric disorder known as brief reactive psychosis.”  The Board considered your lengthy description of the condition and the symptoms you experienced.   The Board also considered your contention that your command failed to facilitate medical evaluation despite your repeated requests, and punished you for your “inability to control a medical and psychiatric disorder which no one attempted to properly medically evaluate.”  You further contend that “the disciplinary treatment and social alienation” you experienced was “stress of a level that caused you to contemplate suicide” and that the “long-term effect was the development of a variation of PTSD.”   Additionally, the Board considered the contentions and supporting documentation from your previous submission.  However, the Board, applying liberal consideration, relied on the AO and determined there was insufficient evidence that you suffered from a mental health condition incurred during military service.  Unfortunately, the Board did not find evidence of an error or injustice that warrants upgrading your characterization of service. Further, the Board, noting you did not provide any documentation regarding post-service accomplishments, did not find evidence of an error or injustice that warrants granting clemency in the form of an upgraded characterization of service. 
 
The Board also noted your statement that “I submit no documentation at this time” because the “determination of the objective medical and psychiatric facts require a proper scientific evaluation and investigation by qualified professionals at a properly equipped medical center.”  The Board noted your request that the Board direct the appropriate investigation, but since the Board is not authorized to conduct or direct investigations, the Board denied your request for an investigation since it is not within its statutory purview to take such action.   
 
It is regretted that the circumstances of your reconsideration petition are such that favorable action cannot be taken.  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 the absence of new matters 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.  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,