DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 
Docket No: 1916-20 
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 30 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 originally enlisted in the Navy on 12 February 2002. Your pre-enlistment medical history and physical examination on 22 January 2002 noted no psychiatric or neurologic conditions or symptoms. On 22 July 2002 you reported for duty on board the USS  ( ) in ,. 

On 5 February 2004 you underwent a mental health evaluation at  Army Medical Center, . Your chain of command referred you for the evaluation after you exhibited behaviors that your supervisors believed were suicidal. You were diagnosed with an adjustment reaction, with brief depressive reaction and major depressive disorder, recurrent. On 19 March 2004 your commanding officer issued you a “Page 13” counseling sheet and retention warning (Page 13) for your diagnosis of an adjustment disorder with mixed disturbance of emotions and conduct, alcohol abuse, and antisocial personality disorder. The Page 13 warned you that any further deficiencies in your performance and/or conduct may result in disciplinary action and/or processing for administrative separation. You did not submit a rebuttal statement. Unfortunately, on 16 April 2004 you received non-judicial punishment (NJP) for unauthorized absence and the larceny of multiple items from the Navy Exchange. You did not appeal your NJP. 

On 22 April 2004 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 in writing to waive your rights to consult with counsel and to present your case to an administrative separation board. Ultimately, on 13 May 2004 you were discharged from the Navy for misconduct with an other than honorable conditions (OTH) characterization of service and assigned an RE-4 reentry code. 

As part of the Board review process, the Board’s Physician Advisor who is a licensed clinical psychologist (Ph.D.), reviewed your contentions and the available records, and issued an AO dated 3 March 2021. The Ph.D. initially observed that your in-service records did contain evidence of a mental health diagnosis for which you received treatment. However, the Ph.D. determined that there was no evidence in your record linking your mental health diagnoses to your misconduct, and the Ph.D. further determined that larceny was not typical misconduct for someone suffering from depressive symptoms. The Ph.D. concluded by opining that although you were diagnosed with an in-service mental health condition, the preponderance of the available objective evidence failed to establish that your in-service misconduct could be mitigated by 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: (a) you were affected by major stressors from outside the service, and (b) at the time you were emotionally stressed and acted out, but not while on duty. 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 in-service mental health diagnoses, that there was no nexus between any mental health conditions and/or related symptoms and your 2002 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. As a result, 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 concluded 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 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 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, 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, 
5/5/2021 

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