Docket No: 2467-20
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 relevant portions of your naval record and your application, 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 your application was not filed in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your application on its merits.  A three-member panel of the Board, sitting in executive session, considered your application on 9 November 2020.  The names and votes of the members of the panel 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. 
 
Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to its 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 and began a period of active duty on 11 February 1997.  On 24 September 1999, you were convicted of a misdemeanor for Driving Under the influence (DUI) in San Diego Superior Court.  On 14 August 2000, you were involved in an incident which resulted in Special Court-Martial (SPCM) proceedings.  On 21 December 2000, a SPCM found you guilty of assault on an Airman by cutting him on the finger with a knife and assault on a Sailor by stabbing him in the chest.  The court sentenced you to be discharged from the Navy with a Bad Conduct Discharge (BCD).   
 
In your application to the Board, you ask for an upgrade to your BCD.  You assert you had undiagnosed Post Traumatic Stress Disorder (PTSD) and depression.  You state that you were suffering from undiagnosed mental health conditions when you defended yourself against four attackers.  You state you did not have the proper conflict resolution skills as a 22 year old, and made a horrible lapse in judgement.  You note your honorable service from 11 February 1997 through 13 August 2000.  You provide character letters in support of your application, and note your contributions to your community, your caretaking role of your disabled mother-in-law, and your expertise in electronics.  
 
The Board noted that your application for correction raises a potential issue of mental health conditions of PTSD and depression during your military service.  In a communication dated 17 March 2020, you were asked to provide additional medical or clinical evidence to support your claim.  When you did not provide additional evidence, your case was re-opened and processed for consideration by the Board. 
 
The Board, in its review of your entire record and application, carefully weighed all potentially mitigating factors, including your contention that you did not have the proper conflict resolution skills, you had undiagnosed mental health conditions, and you were defending yourself from four attackers.  The Board noted that you were asked to provide medical or treatment information regarding your mental health issues, but did not elect to do so.  The Board found that in the absence of medical or treatment information, there is not sufficient evidence to establish that you were suffering from a mental health issue which mitigated your misconduct of assault on fellow servicemembers.  The Board considered the information reflected in your record and found that the SPCM conviction for two specifications of assault, to include stabbing a Sailor in the chest, supported your BCD.  The Board concluded that your current discharge does not reflect an error or injustice, and that corrective action is not warranted.   
 
The Board also reviewed your application under the recent guidance provided in the Under Secretary of Defense’s memorandum dated 25 July 2018 entitled, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations” (USD Memo).  The purpose of the USD Memo is to ease the process for veterans seeking redress and assist Boards for Correction of Military/Naval Records (BCM/NRs) “in determining whether relief is warranted on the basis of equity, injustice, or clemency.”  The USD Memo sets clear standards and principles to guide BCM/NRs in application of their equitable relief authority, and further explains that boards shall consider a number of factors to determine whether to grant relief.  However, even in light of the USD Memo, the Board still concluded given the totality of the circumstances, your request does not merit relief. 
 
It is regretted that the circumstances of your case are such that favorable action cannot be taken.  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,