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

Docket No:  2251-20 
 


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 your application and relevant portions of your naval record, 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. 
   
The Board determined that your personal appearance, with or without counsel, would not materially add to their understanding of the issues involved. Accordingly, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record. 

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 (USD (P&R)) titled “Clarifying Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modification of their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment” (Kurta Memo).  A three-member panel of the Board, sitting in executive session, considered your application on 12 April 2021.  The names and votes of the panel members will be furnished upon request. Your allegations of error or 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, to include the Kurta Memo; the 3 September 2014 guidance from the Secretary of Defense titled “Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requests by Veterans Claiming Post Traumatic Stress Disorder” (Hagel Memo); and the 25 July 2018 guidance from the USD (P&R) titled “Guidance to Military Discharge Review Boards and Boards for Correction of Military / Naval Records Regarding Equity, Injustice, or Clemency Determinations” (Wilkie Memo).  Additionally, the Board considered an advisory opinion (AO) furnished by a qualified mental health professional, dated 12 March 2021 

You enlisted in the Navy and began a period of active duty service on 25 August 1988.  

You were absent from your unit without authorization (UA) in violation of Article 86, Uniform Code of Military Justice (UCMJ), from 3 June 1989 until 11 June 1989. As a result, you missed the movement of . While awaiting the return of your ship at  
(VA), you again went UA on 26 June 1989, until you surrendered to military authorities at Fort you again went UA from 7 August 1989 until you surrendered yourself on 31 August 1989.  You were again UA from the from 2 October 1989 until you surrendered yourself on 5 January 1990.  This absence caused you to miss two more sailings of your ship.  Finally, you were UA from the from 21 February 1990 until you were , , and returned to military control on 22 March 1990

On 1 May 1990, you were convicted by a summary court-martial (SCM) of five specifications of failing to go to your appointed place of duty (restriction muster) between 24 March 1990 and 21 April 1990, in days of confinement in the brig of the 
After your release from confinement on 25 May 1990, you again were UA from 27 July 1990 until you were apprehended by civilian authorities in , , on 17 October 1990.  You missed another  as a result of this UA.  After your return, you again 
were UA from 26 November 1990 until you were again apprehended by civilian authorities in , , on 4 January 1991.  You then went UA again on 8 March until you surrendered yourself on 26 March 1991.
 
On 4 May 1991, you again went UA from your unit. While you were UA on this occasion, on 26 August 1991 you were apprehended by civilian authorities for car theft and receiving stolen property.  For these offenses, you were sentenced to time served and four years of probation.  You were then returned to military control on 10 October 1991, and placed in pretrial confinement.  

On 29 November 1991, you were convicted by a special court-martial of nine specifications of UA totaling 474 days, and sentenced to 100 days of confinement, forfeiture of $250 per month for six months, and a bad conduct discharge (BCD).  The convening authority approved this sentence on 29 January 1992. After completion of the appellate process, your BCD was executed on 1 June 1993. 
Through counsel, you have asked this Board to consider whether your characterization of service, separation authority, reentry code, and narrative reason for separation are properly based upon standards of equity and propriety.  Specifically, you ask that the Board take into consideration that you should have been diagnosed with depression while on active duty; that you were assaulted while on active duty as part of the “Shellback” ritual when you crossed the equator for the first time; your current mental health conditions; and the mitigating facts in your medical record.  The Board has considered each of these factors, and reviewed the documentary evidence that you submitted with your application and the brief prepared by your attorney.  This evidence included your affidavit, several letters of support from current and former family members and a former shipmate; medical documents; and several certificates and other related documents. 

Your application and records were reviewed by a qualified mental health professional who provided an AO regarding your mental health condition(s) for the Board’s consideration.  This AO informed the Board that your in-service medical records revealed endorsement of depression or excessive worry connected to family problems, and that your post-service medical records reflect a diagnosis of depressive disorder, which likely began in 1989 when your father passed away.  The mental health professional who provided the AO advised the Board that there is sufficient evidence that you exhibited behaviors associated with a mental health condition during your military service and that some of your misconduct may be mitigated by your mental health condition.  He caveated this opinion, however, by noting that some of the misconduct in your record (i.e., car theft and receiving stolen property) is not typically associated with depressive symptoms. 

Because you based your request for relief in whole or in part upon your mental health condition(s) and because your attorney suggested that you may have developed post-traumatic stress disorder (PTSD) as a result of your assault during the “Shellback” ritual, the Board applied the guidance of the Hagel and Kurta Memos in its review of your application.  Accordingly, the Board applied liberal consideration to your claimed mental health conditions and the effect that they may have had upon the misconduct for which you were discharged.  Even applying liberal consideration, the Board found insufficient evidence to support your attorney’s contention that you may have developed PTSD as a result of this assault. The Board did not doubt that you endured the traumatic experience of the “Shellback” hazing ritual; rather, it found insufficient evidence to support your attorney’s contention that you developed PTSD as a result of this experience since you have not been clinically diagnosed with the condition despite extensive psychiatric care.  However, the Board substantially concurred with the findings of the AO that you suffered from depression while serving in the Navy, most likely associated with the death of your father and another close friend, and that this condition may have mitigated some of your misconduct. Specifically, the Board believes it likely that your depressive symptoms may have mitigated the UA offenses for which you were court-martialed.  Although the Board believes that your mental health condition mitigated may have your misconduct, it did not find that your condition excused your conduct.  It also did not find that your condition mitigated your involvement with car theft or receiving stolen property while you were UA. 

In addition to applying liberal consideration to you mental health conditions in accordance with the Hagel and Kurta Memos, the Board also considered the totality of the circumstances to determine whether clemency is warranted in the interests of justice in accordance with the Wilkie Memo.  In this regard, the Board considered, among other factors, that you were assaulted as part of the “Shellback” ritual, resulting in injuries to your head and shoulder, and that you had to continue serving with your attackers; that you developed and suffered from depressive symptoms while in the Navy, most likely as a consequence of losing your father and a close friend, and that you continue to suffer from a major depressive disorder today; that you never received assistance from the Navy regarding your mental health concerns; the mitigating effect of your depression on your misconduct, as discussed above; that you suffered from a traumatic brain injury (TBI) after your service in 2010 which caused significant memory loss; the letters of support that you provided with your application; your post-service educational and professional accomplishments, as reflected in the documentation provided with your application; your attorney’s concerns regarding the effectiveness of your trial defense counsel during your SPCM; your relative youth and immaturity at the time of your misconduct; and the passage of time since your discharge.  Even considering these potentially mitigating factors, however, the Board determined that clemency is not warranted given the totality of the circumstances.  Specifically, the Board found that the nature and quantity of your misconduct, even mitigated by your mental health condition, vastly outweighed all of the potentially mitigating circumstances.  The Board was not persuaded by your attorney’s contention regarding the quality of your representation at your SPCM, as it found that your sentence to be extremely minor given the extensive evidence in aggravation.  This aggravating evidence included the multiple times that your UAs were terminated by apprehension; the number of times that you missed your ship’s movement due to your frequent UAs, which would have resulted in hardship for your fellow Sailors who would have had to perform your duties in your absence; that you were arrested and sentenced to time served and probation for car theft and receiving stolen property during one of your UAs; and that your SPCM conviction had been preceded by a SCM conviction.  Quite frankly, the fact that you were sentenced to only 100 days of confinement, an insignificant forfeiture of pay, and a BCD under these circumstances convinced the Board that your representation must have been more than adequate.  The Board regrets that you may have developed depressive symptoms while in the Navy and that you continue to suffer from depression today, but notes that your BCD does not prohibit the Department of Veterans Affairs from finding your condition(s) to be service connected and providing benefits.  The Board was also regrets your current medical situation, which was significantly aggravated by the traumatic brain injury that you suffered in 2010. These circumstances, however, did not warrant clemency for the significant misconduct that you engaged in while in the Navy.  Given the totality of the circumstances, the 

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, 

6/8/2021
Deputy Director