Docket No: 381-20 
Ref: Signature Date 


This letter is in reference to your reconsideration request.  You previously petitioned the Board for Correction of Naval Records (Board) and were advised that your application had been denied.  Your case was reconsidered in accordance with Board procedures that conform to Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004).  After careful and conscientious consideration of relevant portions of your naval record and your application, the Board found that 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 7 April 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 service on 20 April 1999.  You served without disciplinary incident for approximately seven months.  On 16 December 1999, you received nonjudicial punishment (NJP) for a period of unauthorized absence (UA) and failure to obey a lawful order.  You embarked on a second period of UA from 10 April 2001 to 5 May 2001. In May 2001, after your return from the period of UA, you were charged with three specifications of UA, two specifications of missing movement, failure to obey a lawful order by wrongfully consuming alcoholic beverages under the age of 21, wrongfully using a controlled substance (marijuana), and overindulgence in intoxicating liquor or drugs which rendered you incapacitated for the proper performance of duties. You were placed in pretrial confinement.  Medical Records from 18 May 2001, indicate that you were participating in therapy and had been prescribed an antidepressant.  Medical Records further state “(h)e gradually improved to the point that it was felt that he could be discharged.” Administrative Remarks dated 9 July 2001, reflect that you did not intend to reenlist and that you were not recommended for reenlistment.  You were discharged from the Navy on 9 July 2001, on the basis of an other than honorable request in lieu of trial.  You received an other than honorable discharge characterization and a reentry (RE) code of RE-4. 

You request that your separation/discharge from the Navy be voided, that you receive a medical retirement, that your characterization of service be upgraded from other than honorable to general, and that your Certificate of Release or Discharge from Active Duty (DD Form 214) be corrected to reflect the changes. You state that you were suffering from mental illness from the time you began your period of UA in April 2001, through the present.  You seek a change to your discharge in part to obtain the help you badly need.  You assert that the record is in error and unjust because the Navy knew or should have known that you were having severe mental health problems, and should have either treated you or sent to a Physical Evaluation Board (PEB).  You further contend that even if the PEB had determined that you were not eligible for medical retirement or a disability separation, then you should have appeared before an administrative discharge board and received a general or honorable discharge.  You also claim that you were illegally held in pre-trial confinement, that the facts concerning alleged offenses did not justify court martial charges, and two charges of missing movement could not be proven.  
You assert that you should have received NJP for your misconduct, and ask that a Legal Officer experienced in military justice matters provide a proper legal advisory opinion on the nature and severity of the charged misconduct against you. With regard to your previous denial before the Board, you assert that pertinent guidance relating to mental health conditions were not followed and liberal consideration should have been applied.  

You provide numerous documents in support of your application, to include a letter signed by both of your parents which states that after you went UA in April 2001, you arrived at your family home and appeared distressed and worried that you might commit suicide.  Your parents than to a medical facility for evaluation.  You further provide information that your Commanding Officer, was informed by the via fax of your diagnosis of Major Depressive Disorder, Recurrent, with the recommendation that you receive a SARD evaluation and treatment for your condition.  You assert that instead of appropriate mental health treatment, you were given a perfunctory examination and placed in pre-trial confinement for 59 days, the length of which impacted your decision to seek an other than honorable discharge in lieu of court martial. 

The Board noted that your previous petition, NR10253-17, raised arguments that you were entitled to an upgrade to your characterization of service, a change to your narrative reason for separation to disability, and placement on the disability retirement list.  Your earlier petition also asserted that you were suffering from a mental illness that mitigated your misconduct and that you were unfit for continued service.  The current Board noted that the previous Board stated that it applied liberal consideration when evaluating your petition but determined that despite the apparent nexus that exists between your mental health condition and the misconduct, the conglomeration of misconduct was far too serious to overcome be overcome by the mitigation offered by your mental health condition or the circumstances of your case. In your current petition, you assert in part, that liberal consideration was not properly applied by the previous Board. 

Your current request was fully and carefully considered by the Board in light of the Secretary of Defense’s Memorandum, “Supplemental Guidance to MilitaryBoards for Correction of Military/Naval Records Considering Discharge Upgrade Requested by Veterans Claiming Post Traumatic Stress Disorder” of 3 September 2014, and in light of PDUSD’s “Consideration of Discharge Upgrade Requests Pursuant to Supplemental Guidance to Military Boards for Correction of Military/Naval Records byVeterans Claiming PTSD or TBI” memorandum of 24 February 2016. The Board also noted that you ask for reconsideration in part to revisit the application of liberal consideration as outlined in the Kurta memorandum, “Clarifying Guidance to Military Discharge Review Board and Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modification of their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment” memorandum of 25 August 2017.  Additionally, the Board also considered the clemency guidance of “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations” memorandum of 25 July 2018. 

The Board, in its review of your entire record and application, carefully weighed all potentially mitigating factors such as your mental health issues and revisited the application of liberal consideration.  The Board again acknowledged your in-service mental health diagnosis and considered whether your mental health struggles mitigated or excused your discharge, or outweighed the discharge as envisioned by the Kurta memorandum of 25 August 2017. 

The current Board noted that the previous Board acknowledged your criticism of your command’s handling of your case but found that you left the command without authorization for three periods during a time when the command was attempting to assist you with alcohol and performance issues. With regard to the application of liberal consideration, the current Board again found that your mental health struggles did not excuse the seriousness and totality of your misconduct which included wrongful use of a controlled substance on active duty, several periods of unauthorized absence, and missing movement.  When making its decision, the Board weighed your in-service medical diagnosis, to include the input from. , the Clinical Social Worker at, your post-service treatment and diagnosis as reflected by the notes, and your inability to access services through the VA because of your other than honorable characterization of service.  The Board also noted that Psychiatric Associates states in its 20 September 2014 letter that you were “hospitalized for suicidal problems as well.  He had insomnia which now for sure we would connect with bipolar disorder and major depression recurrent, as well as possibly some PTSD considering the trauma involved in this charge for the service when at first they were going to set him up with help and then right after that on the street with no help.” The Board found that based on ’ input, that the PTSD appears to have been impacted, at least in part, by your decision to go UA and the subsequent consequence of confinement following the UA.  

The Board noted that you appeared before the Disciplinary Review Board (DRB) on 6 April 2001, for violations of the Uniform Code of Military Justice Articles 86, 92, and 134.  You state in your application that the DRB “repeatedly asked if I was serious about getting help, and I told them I was.”  Nonetheless, you then began a period of UA on 10 April 2001.  The previous Board considered that your command appears to have been trying to provide support before the start of your period of extended UA and subsequent hospitalization with the Air Force in April 2001.  Upon your return to military control in May 2001, you had already violated numerous Articles of the Uniform Code of Military Justice and had absented yourself without authority after appearing before the DRB.  The Board determined that even in consideration of your mental health conditions and the input from the Air Force providers, your command was neither unjust nor in error in placing you in pretrial confinement.  The Board concluded that the nature and frequency of your misconduct and your UA only four days after the DRB, likely impacted your command’s decision to pursue pre-trial confinement after your hospitalization for suicidal ideations.  The Board noted that you appeared to have been screened by Medical prior to your confinement and before your administrative separation, and were found fit for both confinement and discharge. Furthermore, the Board found that you did not provide sufficient evidence to establish your allegation that pretrial confinement was executed without appropriate review or due process.  The charge sheet dated 5 May 2001 reflects that you were placed in confinement after three periods of UA: 4-5 April 2001, 10-12 April 2001, and 16 April – 5 May 2001.  Given the frequency of your periods of absence within the period of a month, the Board found that the command’s pursuit of pretrial confinement was not unjust. Furthermore, the Board found that you did not provide information establishing that you were medically unfit for confinement or that your confinement was executed in violation of the UCMJ.  The Board  also noted that prior to your submission of a request for an other than honorable discharge to avoid trial by court martial, you had the opportunity to consult with military counsel who could have raised issues of unlawful or unjust pretrial confinement.  Neither your military record nor the information you provided indicate that you had concerns about the legality or appropriateness of the confinement prior to your discharge. Additionally, even after consulting with counsel, you acknowledged the validity of the Article 87 charge of missing movement in your request for an other than honorable discharge characterization in lieu of trial by court atrial.  The Board found that your request for an other than honorable discharge was made with an awareness of the allegations against you and that approval of that request was not done erroneous or unjustly. Even in consideration of your assertion that the charges of missing movement could not be proven at court martial, the Board found that you elected to forego the right to contest the charges against you when you submitted the request for administrative discharge. The current Board concurred with the previous Board and again found that your confinement and your administrative discharge with an other than honorable characterization of service were executed without error or injustice, and that corrective action is not warranted. 

With regard to an upgrade to your service characterization, the Board concluded that even taking into account the mitigating mental health condition of Major Depressive Disorder, noting your in-service struggles with alcohol, and considering your assertion of undiagnosed mental health issues to include PTSD, that a change to your other than honorable discharge is not warranted.  The Board found that your misconduct of missing movement, wrongful use of a controlled substance while in an active duty status, and UA was not mitigated sufficiently to warrant an upgrade to your other than honorable characterization of service.  The current Board, like the previous Board, took particular note of your command’s efforts to provide you support prior to your UA in April 2001, and determined that you were receiving appropriate assistance when you chose to begin the period of absence that ultimately resulted in pretrial confinement and an administrative discharge. Even under the application of liberal consideration, the Board found that your continued misconduct even after being provided support and counseling from your command, and the seriousness of missing movement, UA, and drug abuse was not excused or mitigated sufficient to merit an upgrade. Furthermore, despite your ongoing post-service medical struggles, the Board found that clemency was not appropriate in your case.  The Board made its determination in consideration of the command’s efforts to provide you support followed by your absence from your command.  The Board noted that your personal statement to the Board indicates that you went UA because you did not know what else to do, but as evidenced by the DRB, your command appears to have been supporting efforts to improve your performance.  Additionally, while the Board was sympathetic to your ongoing mental health struggles, the Board found that you did not provide sufficient post-discharge clemency information to overcome the misconduct in your service record and merit an upgrade. 

With respect to your request for a medical/disability retirement or discharge, the Board noted that SECNAVINST 1850.4 series states processing for administrative discharge for misconduct take precedence over processing for disability.  Even in consideration of your assertion of suffering disqualifying mental health conditions while in the Navy and your in-service diagnoses, the Board found that your misconduct as evidenced by your periods of UA from the command and your subsequent request for an other than honorable discharge in lieu of trial by court martial was an appropriate basis for your administrative discharge. Based on this finding, the Board concluded you were not eligible for disability processing or a disability retirement. 

It is regretted that the circumstances of your reconsideration petition are such that favorable action cannot be taken.  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 the absence of new matters for reconsideration, the decision of the Board is final, and your only recourse would be to seek relief, at no cost to the Board, from a court of appropriate jurisdiction. 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.