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 5 May 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). You originally enlisted in the Navy on 7 September 1994. Your pre-enlistment physical examination and self-reported medical history on 21 May 1994 both noted no psychiatric or neurologic conditions or symptoms. On 26 September 1995 your command issued you a “Page 13” counseling warning (Page 13) for failing the physical readiness test. On 19 August 1997 you received non-punitive extra military instruction and a Page 13 warning for unauthorized absence (UA), and for failing to meet the prescribed accuracy rate of 95% on three specific dates while stationed at The Page 13 expressly warned you that subsequent Uniform Code of Military Justice violations could result in an administrative separation. You did not make a rebuttal statement. On 30 April 1998 you reported for duty on board in On 2 March 1999 you received non-judicial punishment (NJP) for violating the Navy Regulations general order prohibiting fraternization. A portion of your NJP was suspended, and you did not appeal your NJP. You were issued a second Page 13 warning documenting your NJP. 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. For the reporting period ending 15 March 1999 you received an adverse performance evaluation. You received an overall trait average of only 2.29 out of 5.0, with 1.0 marks for both leadership and military bearing/character. The performance comments specifically stated, in part: Received three records of negative counseling within the last 7 months concerning performance, personal behavior, and responsibilities. After receiving numerous verbal counselings on uniform standards and personal grooming, he lost his civilian clothes privileges for thirty days…Member continues to struggle in a leadership role. He began an inappropriate relationship with a female E2 in the division. He attended Captain’s Mast on 02MAR99, found guilty of fraternization. On 17 March 1999 you underwent a mental health evaluation on board the . The Medical Officer (MO) diagnosed you with a personality disorder not otherwise specified with borderline features. The MO determined that you were responsible for your own behavior and competent to manage your own affairs. The MO noted that you have received three psychiatric evaluations since joining the Navy and the diagnosis has been confirmed in all cases. The MO also noted that you do not require and will not benefit from hospitalization, and that your disorder was not suitable for treatment in a military setting. On 26 March 1999 the suspended portion of your NJP was vacated due to continuing misconduct. On 26 March 1999 you also received NJP for two specifications of UA for missing restricted muster. On 16 April 1999 you were notified of administrative separation proceedings by reason of misconduct due to the commission of a serious offense and misconduct due to a pattern of misconduct. You elected to exercise your rights to submit statements to the separation authority and to General Court-Martial Convening Authority (GCMCA) review of your discharge. On 5 August 1999 the GCMCA approved and directed your separation with a general (under honorable conditions) (GEN) characterization of service. Ultimately, on 20 September 1999 you were separated from the Navy for misconduct with a GEN characterization of service and assigned an RE-4 reentry code. As part of the review process, the BCNR Physician Advisor, who is a medical doctor (MD) and a Fellow of the American Psychiatric Association, reviewed your contentions and the available records and issued an AO dated 20 March 2021. The MD observed that your in-service records contained evidence of a personality disorder diagnosis, but did not contain evidence of any other severe mental health condition or psychological/behavioral changes indicating a mental health condition. The MD also observed that throughout your military service, disciplinary actions, counselings, and administrative processing, there were no additional concerns cited which would have warranted referral to mental health resources. The MD noted that you did not provide additional evidence of an in-service mental health condition, nor did you describe any symptoms you were experiencing while in-service. The MD also noted that you did not provide any post-discharge clinical records containing a diagnosed mental health condition. The MD concluded by opining that the preponderance of evidence failed to establish you were diagnosed or suffered from an unfitting mental health condition on active duty, or that your in-service misconduct could be attributed to a 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 Kurta, Hagel, and Wilkie Memos. These included, but were not limited to your contentions that: (a) you were diagnosed with but not given adequate treatment for depression and associated mental health issues; (b) you were not properly advised of your options at the time of NJP proceedings; and (c) post-service you have received adequate treatment and been successfully employed in a professional capacity for over twenty years. However, given the totality of the circumstances, the Board determined that your request does not merit relief. In accordance with the Kurta, Hagel, and Wilkie 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 insufficient evidence that you suffered from a mental health condition while on active duty that was related to or mitigated the misconduct that formed the basis of your discharge. As a result, the Board concluded that your misconduct was not due to mental health-related symptoms. Moreover, the Board observed that you did not submit any clinical documentation or treatment records to support your mental health claims despite a request from BCNR on 16 April 2020 to specifically provide additional documentary material. The Board also concluded that even if your misconduct was attributable to any mental health conditions, the severity of your misconduct outweighed any mitigation offered by such mental health conditions. The Board also concluded 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. Regarding your contention that you were not properly advised of your NJP “options,” the Board relied on a presumption of regularity to support the official actions of public officers and, in the absence of substantial evidence to rebut the presumption, to include evidence submitted by the Petitioner, the Board presumed that your NJP proceedings were properly processed and administered. Additionally, the Board noted that you were embarked on the both times you received NJP, which meant by law your “options” were severely limited because Sailors cannot refuse NJP when stationed on board a vessel/ship. The Board determined that personality disorders are characterized by a longstanding pattern of unhealthy behaviors, dysfunctional relationships, and maladaptive thinking patterns. They are not conditions considered unfitting or disabling, but render service members unsuitable for military service and consideration for administrative separation. Accordingly, the Board concluded that your personality disorder was a non-disabling disorder of character and behavior, and that it should not be considered a mitigating factor in your misconduct because it did not impair your ability to be accountable for your actions or behaviors. The Board also determined the record clearly reflected that your misconduct was intentional and demonstrated you were unfit for further service. The Board also noted that there is no provision of federal law or in Navy/Marine Corps regulations that allows for a discharge to be automatically upgraded after a specified number of months or years. The Board did not believe that your record was otherwise so meritorious as to deserve a discharge upgrade and determined that Sailors should receive no higher discharge characterization than is due. The Board determined that characterization under OTH or GEN 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 VA 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 pattern of misconduct clearly merited your receipt of a GEN discharge. 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, 5/13/2021 Executive Director