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 9 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, 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 21 November 1991.  Your pre-enlistment physical examination and medical history on 19 November 1991 noted no psychiatric or neurologic conditions or symptoms.   
 
On 28 February 1994 you submitted a voluntary written request for an other than honorable conditions (OTH) discharge for the good of the service in lieu of trial by court-martial for the following offenses:  unauthorized absence, failure to obey a lawful order, wrongful use of a controlled substance (marijuana), larceny, and an assault upon a fellow shipmate.  Prior to submitting this voluntary discharge request you 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 multiple offenses, as well as the potential sentence of confinement and the negative ramifications of receiving a punitive discharge from a military judge.  Ultimately, on 18 April 1994 you were separated from the Navy with an OTH discharge and assigned an RE-4 reentry code.     
 
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 22 February 2021.  The MD initially observed that your in-service records did not reveal any evidence of a mental health diagnosis, behavioral changes indicating any mental health conditions, or evidence you experienced any primary or secondary trauma.  The MD noted that while your post-service civilian records indicated multiple mental health conditions, the only evidence tying these conditions to your military service was a single statement by a psychiatric nurse practitioner with no analysis or support for this conclusion.  The MD also determined that the 2020 medical opinion you submitted for consideration ran counter to the available objective medical evidence contemporaneous with your enlistment.  The MD concluded that there was insufficient evidence you were either diagnosed with or suffered from a mental health condition on active duty, or that your misconduct 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 Hagel, Kurta, and Wilkie Memos.  These included, but were not limited to your contentions that:  (a) you had an undiagnosed mental health condition which you treated with marijuana and alcohol; (b) you were never sent for mental health treatment; and (c) you are currently diagnosed with PTSD and bipolar disorder with schizophrenic features, and when you are properly medicated your behavior is more controlled.  However, given the totality of the circumstances, the Board determined that your request does not merit relief.   
 
In accordance with the Hagel, Kurta, 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 found no nexus between any type of mental health conditions or 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 found insufficient evidence to conclude that your misconduct was mitigated by any mental health-related symptoms.  Moreover, even if your mental health conditions contributed in some way to your UA, the Board determined that the severity of your misconduct far outweighed any such potentially mitigating effect.  The Board also determined that the evidence of record was insufficient to establish that you were not mentally responsible for your conduct or that you not should otherwise not be held accountable for your actions.     
 
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 did not believe that your record was otherwise so meritorious as to deserve a discharge upgrade and determined that Sailors should receive no higher discharge characterization than is due.  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.  Accordingly, the Board determined that there was no impropriety or inequity in your discharge, and even under the liberal consideration standard, the Board concluded that your serious misconduct clearly merited your receipt of an OTH, and that your separation was in accordance with all Department of the 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,