Docket No: 6793-19 Ref: Signature Date Dear 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 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 4 December 2020. 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). The Board also considered an advisory opinion (AO) from a qualified mental health professional dated 28 October 2020 and your rebuttal documentation. You enlisted in the Navy on 14 June 1983. On 21 May 1984, you received nonjudicial punishment (NJP) for communicating a threat and being out of uniform. On 27 December 1984, you received a second NJP for being absent from your appointed place of duty and three instances of failure to obey a lawful order. On 16 January 1985, you received a third NJP for being absent from your appointed place of duty on two occasions. Subsequently, you were notified of pending administrative separation action by reason of misconduct due to pattern of misconduct. After you waived yours procedural rights, your commanding officer (CO) recommended you be discharged with an other than honorable (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 31 January 1985, you were discharged. As part of the Board’s review, a qualified mental health professional reviewed your request and provided the Board with an AO on 28 October 2020. The AO stated your in-service records do not contain direct or indirect evidence of a mental health condition nor do they contain psychological/behavioral changes which may have indicated a mental health condition. The AO also noted you did not provide any evidence of a post-discharge mental health diagnosis. Based on the available evidence, the AO concluded that the preponderance of available objective evidence does not support your contention that you suffered from a mental health condition at the time of your military service or that your in-service misconduct could be attributed to a mental health condition. The AO was provided to you on 30 October 2020. In rebuttal to the AO, you provided a letter from a psychologist who had reviewed your records, conducted an interview in May 2020, and completed a psychological inventory. The psychologist stated, “based on history, events during the service, his PTSD symptoms since his discharge, but most importantly his return to baseline with regards to his interactions towards others, it is felt that his behaviors while on active duty were a significant change from his typical behaviors and would constitute a period of ‘temporary insanity’.” The AO and AO rebuttal were submitted to the Board for review. The Board carefully reviewed your application, weighed all potentially mitigating factors, and considered your contention that “the character of [your] discharge is based on injustice, unfair, and discriminatory practices.” You further contend that the treatment you received was “racially and religiously motivated.” Specifically, the Board considered your contention that your superiors “engaged in unjust treatment verbally with abuse of their authority” when they separated you from another shipmate of the same ethnicity. The Board also considered your contentions that your CO asked if you “wanted to go back to Africa” and that your petty officer made religious comments in a discriminatory manner. Further, the Board considered your contention that the “training and language used in a racially-charged atmosphere under all white drill instructors” made you “fearful of Caucasian people in general, and Caucasian officers in particular.” Additionally, the Board considered your statement which provided detailed explanation of your experiences which led to these contentions. The Board also considered your contention that none of your violations “make [you] worthy” of an OTH characterization of service. Lastly, the Board considered the AO rebuttal’s contention that you suffered from “temporary insanity” while in service. The Board noted you were evaluated by a psychiatrist prior to discharge and those contemporary mental health findings contradict the post-discharge mental health findings of the psychologist who evaluated you in May 2020. Even applying liberal consideration, the Board determined there was insufficient evidence to link the psychologist’s diagnosis to your in-service misconduct or to conclude you incurred “temporary insanity” which caused you to engage in behaviors that “interfere(d) with the peace of society” or that “departed from the accepted standards of the community to which by birth and education he belong(ed) as to lack the adaptability to make further adjustment to the social customs of the community to which he reside(d).” Even under the liberal consideration standard, the Board discerned no procedural defect, impropriety, or inequity in your discharge and determined your misconduct warranted an OTH character of service. Further, the Board concluded there was insufficient evidence that your misconduct could be attributed to a mental health condition. The Board, applying liberal consideration, did not find evidence of an error or injustice that warrants upgrading your characterization of service. The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in your case in accordance with the Wilkie Memo. These included, but were not limited to, your desire to upgrade your discharge, the numerous advocacy letters submitted on your behalf, and your contentions discussed above. Based upon this review, the Board concluded these potentially mitigating factors were insufficient to warrant relief. Specifically, the Board determined that your repeated misconduct, as evidenced by your three NJPs, outweighed these mitigating factors. Accordingly, given the totality of the circumstances, the Board determined that your request does not merit relief. 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, 1/13/2021 Executive Director