DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 

Docket No: 1471-20 
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 16 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 September 2000. Your pre-enlistment medical history and physical examination on 30 August 2000 noted no psychiatric or neurologic conditions or symptoms. On 10 June 2002 you reported for duty on board the USS  in     . 

On 12 August 2003 your command’s medical department referred you for a mental health evaluation due to complaints of depression. Your chief complaint noted was: “I’ve been feeling down, I hate being away from my friends and family.” The Medical Officer diagnosed you with  an adjustment disorder with depressed mood, and determined that you were psychologically fit for full duty and responsible for your actions. 

On 25 August 2003 you commenced a period of unauthorized absence (UA) from your ship. Your UA lasted fourteen (14) days and terminated on 8 September 2003 with your surrender to military authorities. On 10 September 2003 you received non-judicial punishment (NJP) for the violation of a lawful order and for your 14 day UA. 

On 23 September 2003 you were notified that you were being processed for an administrative discharge by reason of misconduct due to the commission of a serious offense. You elected your rights to consult with counsel and to present your case to an administrative separation board (Adsep Board). In the interim, on 26 September 2003 you routed a request for a conditional waiver but your request was denied. 

On 29 January 2004 an Adsep Board convened in your case. At the Adsep Board, you were represented by a Navy Judge Advocate. Following the presentation of evidence and witness testimony, the Adsep Board members unanimously determined that you the committed misconduct as charged. Subsequent to the unanimous misconduct finding, the Adsep Board members recommended that you be separated from the naval service with an OTH characterization of service. Ultimately, on 6 February 2004 you were discharged from the Navy for misconduct with an other than honorable (OTH) characterization of service and assigned an RE-4 reentry code. On 9 January 2014, the Naval Discharge Review Board denied your initial petition for relief. 

As part of the Board review process, the Board’s Physician Advisor who is a medical doctor and Fellow of the American Psychiatric Association (MD), reviewed your contentions and the available records, and issued an initial AO dated 1 March 2021. The MD initially opined that although you were diagnosed with Traumatic Brain Injury (TBI), PTSD, and major depression post-service, 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. 

Following your submission of AO rebuttal matters for consideration, the MD issued a revised AO on 7 April 2021. The MD concluded by opining that there was sufficient objective evidence your post-discharge diagnoses of TBI, PTSD, and major depression were incurred during the time of your military service, and that your in-service misconduct may be mitigated by your 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 Kurta, Hagel, and Wilkie Memos. These included, but were not limited to: (a) you have a 90% service-connected disability rating including (PTSD/TBI/Major Depressive Disorder) that occurred/started prior to your separation in the Navy, (b) the Hagel & Kurta Memos require your characterization to be re-evaluated due to these factors, (c) the Veterans Administration (VA) has determined that your service was honorable, (d) your discharge was inequitable because you had 36 months of prior exceptional service with one isolated incident, (e) it was well documented that you started to have severe mental health problems prior to your single isolated incident that ruined your enlistment and haunted you ever since, (f) your command and the Navy did not take your mental health issues seriously and failed to ensure you received proper medical treatment, and (g) your service was honorable as your evaluations, commendations and good conduct medal demonstrate. 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 concluded, notwithstanding any VA disability rating to the contrary, that there was no nexus between any mental health conditions and/or related symptoms and your misconduct, and determined that there was insufficient evidence to support the argument that any such mental health conditions were related to or mitigated the misconduct forming the basis of your discharge. Even under the liberal consideration standard, the Board concluded that your misconduct was not due to mental health-related conditions or symptoms. Moreover, even if the Board assumed that your misconduct was somehow attributable to any mental health conditions, the Board unequivocally concluded that the severity of your misconduct far outweighed any and all mitigation offered by such mental health conditions. The Board also noted that the evidence of record did not demonstrate that you were not mentally responsible for your conduct or that you should not be held accountable for your actions. 

The Board determined that personality and/or adjustment disorders are characterized by a longstanding pattern of unhealthy behaviors, dysfunctional relationships, and maladaptive thinking patterns. They are not conditions considered unfitting or disabling, but render service members unsuitable for military service and consideration for administrative separation. Accordingly, the Board concluded that your adjustment disorder was a non-disabling disorder of character and behavior, and that it should not be considered a mitigating factor in your misconduct because it did not impair your ability to be accountable for your actions or behaviors. The Board also determined the record clearly reflected that your misconduct was intentional and demonstrated you were unfit for further service. 

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 noted that, although one’s service is generally characterized at the time of discharge based on performance and conduct throughout the entire enlistment, the conduct or performance of duty reflected by only a single incident of misconduct may provide the underlying basis for discharge characterization. The Board determined that characterization under OTH conditions 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. Additionally, 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. 

Lastly, the Board also noted that VA eligibility determinations for health care, disability compensation, and other VA-administered benefits are for internal VA purposes only. Such VA eligibility determinations, disability ratings, and/or discharge classifications are not binding on the Department of the Navy and have absolutely no bearing whatsoever on previous active duty service discharge characterizations. 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 misconduct clearly merited your receipt of an OTH. 

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, 
4/25/2021 

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