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

Docket No: 4120-20 

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 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 Under Secretary of Defense for Personnel and Readiness regarding requests by Veterans for modification of their discharge due to mental health conditions, sexual assault, or sexual harassment (Kurta Memo).  A three-member panel of the Board, sitting in executive session, considered your application on 24 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, 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 25 March 2021 advisory opinion (AO) from a mental health professional, a copy of which was provided to you, and to which you did not provide a response. 

The Board determined that your personal appearance, with or without counsel, would not materially add to their 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 on 11 December 2001. According to your naval records, you were on a period of unauthorized absence from 20 October 2002 to 9 January 2003, which is also reflected on your Certificate of Release or Discharge from Active Duty (DD Form 214).  Your naval records do not contain your administrative separation documents, but the Board applies a presumption of regularity in such matters, and you would have been provided notice of the initiation of administrative separation processing setting forth you rights prior to your discharge. You were discharged on 21 February 2003, with an other than honorable characterization of service based on misconduct. 

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 Wilkie Memo.  You contend in your petition that you were released from active duty after several years of substance abuse and mental illness which were ignored due to the culture of the military and that from the first day of your enlistment, alcohol was a large part of your career.  You state that you eventually were unable to control your alcohol consumption which resulted in disciplinary problems, which occurred while you were intoxicated and you were never offered the opportunity to recover.  You state that you were a very hard worker but your downward spiral into alcohol and ultimately marijuana was ignored.  You contend that instead of being offered treatment you were encouraged to accept an other than honorable discharge. You also state that you had no legal representation during your dismissal. 

In light of your assertion of a mental health condition, the Board received, and reviewed, the 25 March 2021 AO. The AO reviewed your naval records as well as all of the materials that you submitted, and explained that: 

Petitioner’s in-service records did not contain evidence of a diagnosis of a mental health condition or psychological/behavioral changes, which may have indicated a mental health condition. Although Petitioner claimed he suffered from an undiagnosed mental health condition and substance use disorder during his military service, he did not provide any description of symptoms, which would meet the criteria for the proposed disorders. The lack of diagnosis/information made it difficult to establish a timeline of onset and development of mental health symptoms or identify a nexus with his in-service misconduct.  
 
The AO concluded, “it is my considered medical opinion the preponderance of available objective evidence failed to establish Petitioner suffered from a mental health condition at the time of his military service or his in-service misconduct could be mitigated by a mental health condition.” 

In review of all of your materials, the Board concurred with the AO and determined that there is no evidence, nor did you provide any, that you had mental health issues during your enlistment that mitigated your misconduct, which resulted in your discharge.  The Board noted that you did not provide any evidence that you did not have legal representation with respect to your discharge.  The Board presumed that, in order for you to have been discharged under other than honorable conditions, you would have been provided notice of rights, which included, among other rights, the right to speak with counsel, and the right to have your case heard before an administrative board, all at no charge to you.  In conclusion, given the totality of the circumstances, in light of the finding of the AO, as well as a review of your overall service record, 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, 
5/27/2021

Executive Director