Docket No:  1048-20 
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 limitations 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 5 April 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, 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). 
   
You enlisted in the Navy and began a period of active duty on 25 October 1976.  On 14 April 1978, you received nonjudicial punishment (NJP) for a brief period of unauthorized absence (UA), and disobedience.  On 6 June 1979, you received NJP for possession of hashish.  Additionally, you were counseled regarding your misconduct, and warned that further misconduct could result in administrative discharge action.  On 28 February 1980, you were convicted by general court-martial (GCM) of conspiracy to commit robbery and assault with an air pistol, eight days of UA, and with intent to commit robbery, unlawful assault.  You were sentenced to a reduction in paygrade, a forfeiture of all pay and allowances, confinement at hard labor.  On 21 March 1980, you were, convicted by GCM of robbery by means of force and violence.  You were sentenced to a period of confinement, a forfeiture of all pay and allowances, a reduction and paygrade and a bad conduct discharge (BCD).  On 6 June 1980, you received NJP for four specifications of UA, all totaling less than 24 hours, and disobeying a lawful order.  You received your BCD on 14 October 1982. 
 
A qualified mental health professional reviewed your request for correction to your record and provided the Board with an AO regarding your assertion that you was suffering from PTSD during your service.  The AO noted that your PTSD diagnosis could be considered as mitigation for some of your in-service misconduct (e.g., UA, substance abuse, disobedience), but not for other misconduct such as theft, assault, robbery, and conspiracy. 
 
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 assertions that during your court-martial, there was nothing mentioned about the impact of you experiencing a severe trauma in witnessing the death of a brother Sailor.  You assert that the traumatic event heavily affected your life at that time, including your performance, in addition to having a lifetime impact of PTSD, and you believe that you should have received either a medical or honorable discharge.  However, based upon this review, the Board concluded these potentially mitigating factors were insufficient to warrant relief.  Specifically, the Board determined that your misconduct, as evidenced by three NJPs, two GCM convictions for very serious offenses, and the fact that you were counseled and warned of the consequence of further misconduct, after your second NJP, outweighed these mitigating factors.  Additionally, the Board concurred with the AO in that although some of your misconduct could be mitigated as a result of your PTSD, misconduct such as such as theft, assault, robbery, and conspiracy, cannot be mitigated by your PTSD diagnosis.  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,