Docket No: 1157-20
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 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 26 March 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).    
 
You enlisted in the Navy on 12 December 1994.  On 13 December 1994 you were evaluated at the Naval Hospital  Branch Clinic and it was discovered that you underwent anterior cruciate ligament reconstruction surgery in 1990.  The Medical Officer noted that residual hardware from the surgery was still in place, deemed you unfit for further service and recommended your entry level administrative separation.   
 
On 21 December 1994 your command provided you notice that you were being administratively processed for an administrative discharge from the Navy by reason of defective induction and enlistment into naval service due to erroneous enlistment.  You elected in writing to waive your rights to consult with counsel and submit a written statement to the separation authority.  You also expressly stated in writing that you did not object to your discharge.  Ultimately, on 29 December 1994 you were discharged from the Navy with an uncharacterized entry level separation (ELS) given your length of service and assigned an RE-4 reentry code.  In this regard, you were assigned the correct characterization and reentry code based on your factual situation. 
 
As part of the Board review process, the BCNR Physician Advisor who is a licensed clinical psychologist (Ph.D.), reviewed your contentions and the available records and issued an AO dated 22 February 2021.  The Ph.D. initially observed that you did not disclose your pre-service knee reconstruction surgery on your enlistment medical history, and the Ph.D. determined that disclosing such pre-service injury would likely have disqualified you from military service.  Additionally, the Ph.D. noted that your in-service records did not reveal any evidence of a mental health diagnosis or psychological or behavioral changes indicating any mental health conditions.  The Ph.D. also noted that you did not provide evidence of a service-connected mental health condition.  The Ph.D. further noted that while your 2018 post-service civilian records indicated certain mental health conditions, there was no information in such records linking the diagnoses to military service.  The Ph.D. concluded by opining that there was insufficient evidence you were either diagnosed with or suffered from a mental health condition on active duty, or that your discharge was attributable to a mental health condition. 
 
The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in your case in accordance with the Kurta, Hagel, and Wilkie Memos.  These included, but were not limited to your contentions that:  (a) you were a war time veteran; (b) your life’s dream was to serve your country; (c) pre-service medical screening missed your knee injury and it was not your fault or error that your initial medical screening passed you on to boot camp; (d) you took an oath to serve your country but the Navy never gave you a chance; and (e) since your discharge you have suffered from depression, bipolar disorder, and addiction.  However, given the totality of the circumstances, the Board determined that your request does not merit relief.   
 
In accordance with the Kurta, Hagel, and Wilkie 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 there was no nexus between any mental health conditions and your ELS discharge, and the Board determined the underlying basis for your discharge was clearly an erroneous enlistment for a disqualifying medical issue and not due to any mental health conditions.   
 
The Board determined that you had a legal, moral and ethical obligation to remain truthful on your enlistment paperwork.  Had you properly and fully disclosed your entire medical history you likely would have been disqualified from enlisting.  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, there was no impropriety or inequity in your discharge, and even under the liberal consideration standard, the Board concluded that your factual situation clearly merited your receipt of an ELS, and that such characterization was proper and in compliance with all Navy directives and policy at the time of your discharge. 
 
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,