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 22 January 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, an Advisory Opinion (AO) from a qualified mental health provider, 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) (Kurta Memo, Hagel Memo, and Wilkie Memo collectively, “Clemency Memos”).   
 
You enlisted in the Navy on 20 July 1990. Your pre-enlistment physical examination and medical history noted no psychiatric or neurologic conditions or symptoms.  On 19 December 1991 you were involved in an off-base shooting of another Sailor in ,  who subsequently died from his wounds.  You were charged with manslaughter in connection with his death, but released on bond 17 January 1992.  While your criminal case was pending, on 31 August 1992 you commenced an authorized absence (UA) that lasted 100 days until 9 December 1992.  While you were in a UA status, you missed the movement of your ship twice. 
 
Following your return to military authorities, you submitted a voluntary written request for an undesirable discharge for the good of the service in lieu of trial by court-martial for your lengthy UA.  Prior to submitting this voluntary discharge request you would have conferred with a qualified military lawyer, at which time you were advised of your rights and warned of the probable adverse consequences of accepting such a discharge.  As a result of this course of action, you were spared the stigma of a court-martial conviction for your long-term UA, as well as the potential sentence of confinement and the negative ramifications of receiving a punitive discharge from a military judge.  Ultimately, on 16 February 1993 you were separated from the Navy with an other than honorable conditions (OTH) discharge.  The Board denied your initial discharge upgrade petition on 28 April 2012.   
 
As part of the review process, the BCNR Physician Advisor who is also a medical doctor (MD) and a Fellow of the American Psychiatric Association, reviewed your mental health contentions and the available records and issued an AO dated 14 December 2020.  The MD noted that your in-service records did not contain direct evidence of traumatic brain injury (TBI) or psychological/behavioral changes that may have indicated TBI.  The MD determined that although you presented post-discharge diagnoses of hypertension, diabetes, cervical radiculopathy (with multiple spinal stenosis), TBI, headaches, and Bell’s Palsy, there was no relationship or linkage made between such post-discharge diagnoses and your military service or misconduct.  The MD concluded by opining that there was insufficient objective evidence you incurred a service-connected TBI or that your misconduct was mitigated by any other mental health conditions.    
The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in your case in accordance with the Clemency Memos.  These included, but were not limited to:  (a) the Navy discharged you without a separation physical, mental evaluation, or service separation counseling, (b) you were turned over to civilian authorities with a military hearing or adequate due process, and (c) upon entering the military you were diagnosed with several disabling conditions.  However, given the totality of the circumstances, the Board determined that your request does not merit relief. 
 
In accordance with the Clemency Memos, the Board gave liberal and special consideration to your record of service, and your contentions about any traumatic or stressful events you experienced and their possible adverse impact on your service.  However, the Board concluded that there was no nexus between any TBI or mental health-related symptoms and your misconduct, and determined that there was insufficient evidence to support the argument that any such mental health conditions mitigated the misconduct that formed the basis of your discharge.  Even under the liberal consideration standard, the Board concluded that your pattern of misconduct was not due to mental health-related conditions or symptoms.  The Board also determined that the evidence of record did not demonstrate that you were not mentally responsible for your conduct or that you should otherwise not be held accountable for your actions.     
 
Regarding your contention that you never received a separation physical or separation counseling, the Board noted that you record indicates that you underwent a separation physical examination at Naval Hospital ,  on 23 July 1992.  The Medical Officer for your separation physical noted no psychiatric or neurologic conditions or symptoms.  The Board also noted that your record reflects you received certain pre-separation information materials and counseling on both 9 and 16 February 1993.  Additionally, despite the fact that some of your administrative separation documents were not in your record, the Board relied on a presumption of regularity to support the official actions of public officers and, in the absence of substantial evidence to rebut the presumption, to include evidence submitted by the Petitioner, the Board presumed that you were properly processed for separation and discharged from the Navy for your long-term UA.   
 
The Board also noted that there is no provision of federal law or in Navy/Marine Corps regulations that allows for a discharge to be automatically upgraded after a specified number of months or years.  The Board determined that characterization under OTH conditions is generally warranted for misconduct and is appropriate when the basis for separation is the commission of an act or acts constituting a significant departure from the conduct expected of a Sailor.  Lastly, absent a material error or injustice, the Board generally will not summarily upgrade a discharge solely for the purpose of facilitating VA benefits, or enhancing educational or employment opportunities.  The Board carefully considered any matters submitted regarding your post-service conduct and accomplishments, however, even in light of the Wilkie Memo and reviewing the record holistically, the Board still concluded that given the totality of the circumstances 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,