Docket No: 2318-20            
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 26 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 a 16 March 2021 advisory opinion (AO) from a mental health professional, a copy of which was provided to you, and to which you did not provide a response. 
 
You enlisted in the Navy on 3 August 1984.  On 14 January 1985, you were warned for consistently being late to musters, and it was explained to you that you would need to go to medical if you were having issues falling asleep.  On 18 January 1985, you received nonjudicial (NJP) punishment for failing to go to your appointed place of duty on three occasions.  On 6 February 1985, you received NJP again for failing to go to muster.  On 4 March 1985, you were evaluated by a psychiatrist and had a follow up session on 7 March 1985.  During this evaluation, you gave a history of “years of sleep problems” but you did not meet the criteria for any specific sleep disorder, there were no symptoms presented that suggested PTSD, the mental status examination was unremarkable, and your clinical history did not indicate any major psychological disorders or “physiologic cause for oversleeping.”  On 24 June 1985, you received a written warning due to your poor conduct, and you were advised to avoid individuals who deal in controlled substances.  On 14 June 1986, you were evaluated by neurology, which found that you did not meet the criteria for sleep disorders, but did note that you had exhibited a “pattern consistent with Passive-Aggressive Personality Disorder.”  On 22 June 1986, you received a written warning for sleeping on watch and for avoiding your duties.  On 26 June 1986, you received NJP for dereliction of duty and sleeping on watch.  On 24 November 1986, you received NJP for failing to go to your appointed place of duty, dereliction of duty, and sleeping on watch.  Ultimately, you were notified that you were subject to administrative discharge processing.  While the documents concerning your administrative separation processing documents are not available in your naval records, the Board applies a presumption of regularity in such matters, and your records demonstrate that you were discharged on 24 December 1986, with an other than honorable characterization of service.   
 
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 contend that during your time in the service, you had committed multiple offenses for failing to go to your appointed place of duty and falling asleep on watch.  You also explain that you were seen by doctors to see if there was a reason for you not being able to fall asleep at night and that since the time out of the service, you spoke to many mental health providers and you believe it was due to your childhood trauma of being kidnapped and sexually assaulted that led to the issues you had in service.  You further contend that you have been diagnosed with PTSD due to the childhood trauma.  You believe that had you received proper treatment during your service, you would not have gotten the discharge that you received.   
 
In light of your assertions concerning your mental health, the Board obtained the 16 March 2021 AO.  The AO reviewed all of your contentions and available records.  The AO concluded that, “it is my considered medical opinion the preponderance of objective evidence failed to establish Petitioner was diagnosed with, or suffered from a mental health condition at the time of his military service, or his in-service misconduct could be attributed to a mental health condition.”  The Board also reviewed and considered all of the attachments to your petition, including the letters of reference that you provided.   
 
Based upon its review, the Board concluded the potentially mitigating factors you raised were insufficient to warrant relief.  The Board concurred with the finding of the AO that the evidence fails to establish that your in-service misconduct could be attributed to a mental health condition.  The Board also found that your letters of reference were insufficient to warrant relief based on clemency due to post-service achievements.  Given the totality of the circumstances, and in light of the misconduct that was the cause of your discharge as evidenced by imposition of nonjudicial punishment on four occasions, 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, 
4/29/2021
Executive Director