Docket No: 2245-20
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 29 January 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) (Kurta Memo, Hagel Memo, and Wilkie Memo collectively, “Clemency Memos”).   
 
You enlisted in the Navy on 7 November 2001.  Your pre-enlistment physical examination and medical history noted no psychiatric or neurologic conditions or symptoms.  On 10 October 2002 you received non-judicial punishment (NJP) for unauthorized absence (UA).  On 15 October 2002 you were issued a “Page 13” retention warning (Page 13).  The Page 13 expressly warned you that any further deficiencies in your performance and/or conduct may result in disciplinary action and processing for administrative separation.     

However, on 13 January 2003 you received NJP for larceny and wrongful appropriation, and also received another Page 13 with a similar misconduct warning.  On 22 July 2003 you received NJP for the wrongful use of a controlled substance. 
 
On 22 July 2003 you were notified that you were being processed for an administrative discharge by reason of misconduct due to drug abuse.  On 24 July 2003 you expressly waived your rights to consult with counsel, submit a written statement, and to present your case to an administrative separation board.  Ultimately, on 28 August 2003 you were separated from the Navy with an OTH discharge.  On 8 August 2012 you were notified that the Naval Discharge Review Board (NDRB) determined that your OTH discharge was proper as issued and no change was warranted.  The NDRB stated that while you may have felt personal stress from the loss of your son was the underlying cause of your misconduct, the NDRB instead determined the record clearly reflected that your misconduct was willful and repetitive and demonstrated you were unfit for further service.  
 
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 30 March 2020.  The Ph.D. observed that you have a current diagnosis of bipolar disorder and alcohol use disorder, however, the Ph.D. determined that there was insufficient evidence regarding the onset of your current mental health concerns to attribute your diagnoses to military service more than 15 years ago.  The Ph.D. noted that while the loss of a child very likely would result in emotional distress, the Ph.D. determined that it was difficult to attribute UA and larceny to bereavement.  The Ph.D. concluded by opining that there was insufficient evidence to establish your misconduct was attributable to a service-connected 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 Clemency Memos.  These included, but were not limited to:  (a) aside from your troubles shortly before leaving service you provided honorable service to the U.S. Navy, (b) your son passed away at the age of two and this caused you to be unable to focus on the mission, (c) your discharge prevents you from accessing VA resources to transition into a productive livelihood, (d) you were unable to seek help while on active duty, (e) your ultimate goal is to become a pastor and to use this platform to mentor and motivate others in your community to endeavor and reach their own goals in life, and (f) with an upgraded discharge you could access disability compensation from the Department of Veterans Affairs (DVA) that would assist in maintaining permanent housing and allow you to have access to a primary care provider in your area that you could use to maintain good health and stay up to date on immunizations.  However, given the totality of the circumstances, the Board determined that your request does not merit relief.   
 
In accordance with the Clemency 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 that there was no nexus between any mental health conditions or mental health-related 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 concluded that your misconduct was not due to mental health-related conditions or symptoms.  The Board also determined that the evidence of record did not demonstrate that you were not mentally responsible for your conduct or that you should otherwise not be held accountable for your actions.     
 
Additionally, the Board observed that character of military service is based, in part, on conduct and overall trait averages which are computed from marks assigned during periodic evaluations.  Your overall active duty trait average in conduct was 1.50.  Navy regulations in place at the time of your discharge required a minimum trait average of 2.50 in conduct (proper military behavior), for a fully honorable characterization of service.  The Board concluded that your conduct marks during your active duty career were a direct result of your pattern of serious misconduct which further justified your OTH characterization of discharge.  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 DVA 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. 
 
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,