Docket No: 2093-20
Ref: Signature Date              

 
Dear  
 
This is in reference to your application for correction of your naval record pursuant to Title 10, United States Code, Section 1552.  After careful and conscientious consideration of the entire record, the Board for Correction of Naval Records (Board) found the evidence submitted was 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 19 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, including 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).  The Board also requested and reviewed an 11 March 2021 advisory opinion (AO) from a mental health professional, which has been provided to you, and to which you did not provide a response. 
 
The Board determined that your personal appearance, with or without counsel, would not materially add to their understanding of the issues involved.  Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record. 
 
You enlisted in the Navy on 19 April 1984 and served through 5 April 1988.  You immediately reenlisted on 6 April 1988.  On 16 June 1987, you received nonjudicial punishment for a one-day period of unauthorized absence as well as missing ship’s movement.  You received nonjudicial punishment on 16 September 1987, and again on 22 January 1988.  On 26 July 1989, you were convicted by a special court-martial for disobeying a lawful order by having an unauthorized shotgun, violating a lawful general order, using marijuana on two occasions, breach of the peace, and causing a disturbance.  Your sentence included a bad conduct discharge.  Your bad conduct discharge was approved and on 5 June 1990 you were discharged. 
 
The Board carefully considered all potentially mitigating factors in your petition to determine whether the interests of justice warrant relief in your case including in accordance with the Kurta and Wilkie Memos.  You have asserted that your misconduct should be mitigated by your previously undiagnosed or undocumented post-traumatic stress disorder (PTSD) or mental health condition.  You have stated that you are currently diligently involved with the Department of Veterans’ Affairs mental health staff, that in 2018 you completed inpatient mental health treatment, that you take various mental health medications to aid in your condition, and that you have a combined rating of 70 percent service-connected disability. 
 
The Board considered the materials that you submitted with your petition.  In connection with your contentions, the Board sought 11 March 2021 AO.  The AO reviewed all of your contentions and available records.  The AO determined as follows: 
 
Petitioner’s in-service records did not contain evidence of a diagnosis of a mental health condition or psychological/behavioral changes, which may have indicated a mental health condition.  Throughout his disciplinary actions, counselings, and administrative processing, there were no concerns noted which would have warranted referral to mental health resources.  There is no indication in the service record Petitioner was exposed to a primary or secondary trauma and Petitioner did not identify one in his application.  Although he contends he was diagnosed post-discharge with PTSD and has a combined rating of 70 percent service connection to the VA, he did not provide a description of his symptoms, civilian diagnoses, or proof of service connection.  The lack of diagnosis/information on how he meets criteria for a mental health condition make it difficult to establish a timeline of onset and development of mental health symptoms or identify a nexus with his in-service misconduct. 
 
The AO concluded, “Based on the available evidence, it is my considered medical opinion the preponderance of available objective evidence failed to establish Petitioner was diagnosed with a mental health condition, suffered from a mental health condition at the time of his military service, or his in-service misconduct could be mitigated by a mental health condition.” 
 
Based upon its review, the Board concluded the potentially mitigating factors you raised were insufficient to warrant relief.  The Board concurred with the findings of the AO, specifically noting that there is no indication in your service record that you were exposed to a primary or secondary trauma and you did not identify one in your petition.  The Board also noted that you did not provide a description of your symptoms, civilian diagnoses, or proof of service connection.  Given the totality of the circumstances, and in light of the misconduct that was the cause of your discharge as evidenced by a court-martial conviction that included a variety of serious charges, the Board determined that your request does not merit relief. 
 
You are entitled to have the Board reconsider its decision upon the 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,