Docket No: 3739-20            
Ref: Signature Date 
          
 
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 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 12 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 24 March 2021 advisory opinion (AO) from a mental health professional. 
 
You enlisted in the Navy on 23 July 1981.  On 13 April 1983, you received nonjudicial punishment (NJP) for using marijuana.  On 27 April 1983, you were seen by a medical professional who noted that you engaged in suicidal ideation, and you were diagnosed with immature personality disorder, and adult situation reaction with depressed mood resolved.  According to the medical notes, during the medical visit, your speech was pressured, your affect was hostile, and your mood was mildly depressed.  The medical notes also described that, as a result of your positive urinalysis, you were dropped from air traffic control school, and you presented yourself in a very childish and angry fashion, and you were demanding attention.  On 13 September 1983, you received NJP for being disrespectful to a petty officer on two occasions, assaulting a petty officer by throwing a chair at him, willfully disobeying an order to get out of your rack and get to work, and for willfully disobeying an order to clean a compartment.  Thereafter, you were notified of the initiation of administrative separation processing, and your rights in connection therewith.  On 6 October 1983, your commanding officer transmitted your administrative separation package to the separation authority.  In his transmittal message, your commanding officer explained, “as a result of his professed desire to leave the service at any cost it is doubtful that he will significantly improve, his immature and flippant attitude toward authority made him an unwelcome member of his division.  His disrespect and assault and disobedience of his superior petty officer’s orders made him a liability and a hazard to the command.”  On 14 October 1983, you were discharged 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.  These included, but were not limited to, your contentions you had bipolar disorder and symptoms, and similar mental health concerns which mitigated your misconduct.  The Board considered the materials that you submitted with your petition, which included a character reference and medical documentation.  In connection with your contentions, the Board sought the 24 March 2021 AO.  The AO reviewed all of your contentions and available records.  The AO found that: 
 
Petitioner’s in service record revealed an enlistment physical devoid of any mental health concerns and a separation physical, which endorsed depression or excessive worry.  Petitioner also submitted documentation from his military medical record.  He tested positive for marijuana in March of 1983. He complained of financial problems, lack of motivation, depression and thoughts of suicide in April of 1983 and was referred for a psychological evaluation.  The evaluation described him on admission as having pressured speech, hostile affect, mood mildly depressed and presenting in a “childish, angry fashion demanding attention.” 
 
The next day he was described as accommodating. On 20 May 1983 he was seen for a follow up appointment and “feelings of hopelessness” were noted, as well as a situational adjustment disorder, prolonged by poor coping skills and a possible dependent personality disorder. By August, Petitioner was described in the medical note as a “manipulative individual attempting to use threats as a way out of the military.”  Petitioner noted in his application he had “ongoing Bipolar Depression” and symptoms consistent with a Bipolar disorder are similar to those used to describe Petitioner in the medical notes provided.  For instance, he was described as impulsive, joined the Navy “on a whim,” and although he was majoring in music, he dropped out of college to be a restaurant manager. Petitioner was undergoing counseling, while in-service, but with ineffective results. 
 
Typically, treatment of mental health conditions do not immediately resolve reported symptoms.  Patients subsequently attempt to increase attention to their distress with maladaptive coping skills (i.e., acting out).  Petitioner’s documented mental health symptoms/diagnoses, while he was active duty, lends credibility to his contention. 
 
Based on the available evidence, it is my considered medical opinion there is sufficient evidence Petitioner exhibited behaviors associated with a mental health condition during his military service and his misconduct may be mitigated by his mental health condition. 
 
Based upon its review, the Board concluded the potentially mitigating factors you raised were insufficient to warrant relief.  The Board credited the AO’s summary of your service and finding that neither your enlistment physical nor your discharge physical noted any diagnosis of a mental health condition other than excessive worry and depression.  The Board did not agree with the conclusion that your misconduct may be mitigated by a mental health condition.  Your naval record demonstrates that you served without incident for nearly two years of your service, and your service declined only in April 1983, after your first NJP and the resultant disenrollment from air traffic control school.  The Board noted that you were not immediately processed for administrative separation after your first NJP for use of an illegal drug, which would have occurred in many cases of drug use in your service era.  The recommendation of your commanding officer explained that you wanted to leave the service at any cost, and you engaged in serious misconduct, which included striking a superior petty officer with a chair.  Given the totality of the circumstances, and in light of the misconduct that was the cause of your discharge as evidenced by NJP on two occasions, for charges including assault and drug use, 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,