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

Docket No: 3193-20 
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 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 for Correction of Naval Records, sitting in executive session, considered your application on 2 June 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.
 
You enlisted in the Navy and began a period of active duty on 14 December 2000.  You received a retention warning on 26 March 2001, for failing to disclose your pre-service civil convictions/involvement for an October 2000 civilian charge of receiving stolen party and theft.  On 24 January 2003, you received nonjudicial punishment (NJP) for a period of unauthorized absence (UA) from your unit.  On 5 November 2003, you were found guilty at special court martial proceedings for dereliction of duty and wrongful use of marijuana.  On 15 November 2004, you were separated from the Navy with a bad conduct discharge on the basis of the court martial conviction and received a reentry (RE) code of RE-4. On 16 April 2012, the Naval Discharge Review Board (NDRB) voted to change your discharge characterization as a matter of clemency and to upgrade the bad conduct discharge to a general characterization of service.  NDRB took into consideration in-service medical issues that were not quickly identified and treated.  On 17 September 2013, Veterans Affairs (VA) granted you a 70% disability rating due in part to service-connected bipolar disorder.  You also were rated 20% disabled for hemorrhoids and 10% for tinnitus. 

In your petition to the Board, you request the following changes to your record: (1) restoration of the rank of Airman (E-3) from 5 November 2003; (2) a change to your narrative reason for separation to a “Medical Discharge”; (3) restoration of lost income resultant from your court martial conviction to include lost pay from 5 November 2003 through 15 November 2004 (in the amount of $27,645.00); (4) compounded interest for the period of 5 November 2003 to 15 November 2004; (5) “Permanent Retirement Disability Rating” of 100% from 15 November 2004; (6) entry on the Permanent Disability Retired List (PDRL) beginning 15 November 2004; (7) restoration of loss of disability retired pay from 15 November 2004 (in excess of $335,086.50); (8) restoration of compounded interest for the aforementioned disability retired pay; (9) retroactive pay calculated based on 2020 rate of AN (E-3) retirement pay; (10) pay of $2303 (E-3 Base Pay) x .75% (Maximum % by Law) = $1727.25 / Month; and (11) restoration of pay all pay and retired pay due (in excess of $362,731.50 + Interest %). 

You assert that your narrative reason for separation is erroneous and unjust and must be corrected to reflect mitigating circumstances.  You provide a statement in support of your application for correction and information about your current VA disability rating.  You assert that the Navy was derelict and failed to properly evaluated, diagnose, and treat your mental and physical illness during your military service.  You also claim that the Navy failed to declare you unfit for duty and you were instead forced into hard labor.  You state that during the work day you began to have extreme anxiety, nervousness, shakes and sweating, and that the unfortunate symptoms of bi-polar discharge caused suicidal ideations to creep into your subconscious.  You contend that your special court martial alone does not accurately characterize your entire service.
 
The Board, in its review of your entire record and application, carefully weighed your assertions and contentions, to include that you are entitled to clemency with respect to your discharge due to a mental health condition.  The Board noted that NDRB considered changing your narrative reason for separation but found that since you committed misconduct during your service and should be held accountable; the narrative reason for separation should remain.  The Board concurred with the reasoning of NDRB and noted that you were convicted at special court martial proceedings for dereliction of duty and wrongful use of marijuana.  Even in consideration of your VA rating and your contention that you suffered from a mental health condition that impacted your performance of duty, the Board found that the court martial proceedings were executed without error or injustice and that your loss of rank (and subsequent loss of pay and associated interest) following the conviction was appropriate.  The Board also determined that the conviction supports your current narrative reason for separation.  With respect to your claim of disability retirement, disability retired pay, and associated interest, the Board noted that SECNAVINST 1850.4 series states processing for discharge for misconduct take precedence over processing for disability.  Even in consideration of your assertion of suffering a medical condition/disability that was not properly diagnosed or treated, the Board found that your misconduct as evidenced by your special court martial conviction was an appropriate basis for your discharge.  The Board determined that based on your misconduct, you did not merit an evaluation for fitness of duty through the Medical Board/Physical Evaluation Board process, nor did you qualify for a medical or disability discharge or retirement.  

Furthermore, the Board weighed your contention that your VA disability ratings should merit corrective action with respect to the narrative separation reason and with regard to a medical retirement/disability separation and associated pay (including back pay and interest).  The Board determined that the fact that the VA issued you disability ratings for service-connected conditions is not considered probative on a determination of eligibility for a medical/disability retirement or discharge, since eligibility for compensation and pension disability ratings by the VA are tied to the establishment of service connection and are manifestation-based without a requirement that unfitness for military duty be demonstrated. Your receipt of substantial disability compensation from the VA is not probative of the existence of error or injustice in your naval record because the VA awarded that compensation without regard to the issue of your fitness for military duty at the time of your separation, and was made without consideration of the misconduct reflected in your active duty service record.  The Board concluded that you did not provide sufficient evidence to support a transfer to the PDRL or to issue a finding of error or injustice with regard to your current discharge as effectuated by your special court martial conviction.
 
The Board reviewed your numerous requests for corrective action but found that your current discharge in the grade of E-1, on the basis of your court martial conviction (to include loss of active duty pay) was issued without error or injustice. 

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,