Docket No. 4429-20
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 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 case on its merits.  A three-member panel of the Board, sitting in executive session, considered your application on 7 January 2021.  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.  In addition, the Board considered the advisory opinions contained in Psychiatric Advisor CORB letter 1910 CORB: 002 of 16 September 2020 and Director CORB letter 1910 CORB: 001 of 7 October 2020 along with your response to the opinions.   
 
A review of your record shows that you entered active duty with the Navy in August 1981 and worked as a Cryptologic Technician.  During your first assignment to , you were counselled for financial responsibility issues and assigned an adverse evaluation in January 1985.  In December 1985, you responded to an aircraft crash as a volunteer firefighter and experienced trauma after witnessing the death and destruction associated with the accident.  Subsequently, after the removal of your security clearance, you received another adverse performance evaluation in March 1986 upon your transfer from the exchange program.  In July 1987, you were counselled after being involved in disorderly conduct at a club and allegedly striking your spouse.  The following year, non-judicial punishment was imposed on you in March, July, and August for multiple unauthorized absences, dereliction of duty, and failure to obey an order.  As a result, you were reduced in paygrade to E3 and punished with $600 in forfeitures.  Around that time period, you were screened for alcohol abuse and recommended for alcohol rehabilitation treatment.  However, you were hospitalized on 30 September 1988 after reporting symptoms associated with your marital difficulties and remained under care until 28 October 1988.  After an initial diagnosis of adjustment disorder, you were diagnosed with marital problems, occupational problems, and a mixed personality disorder upon your discharge from the hospital.  In March 1989, you were processed for administrative separation due to your pattern of misconduct resulting in your discharge on 19 April 1989 with a General characterization of service.  Post-discharge, you worked as an offshore crane operator until 2015 and volunteered with a fire department until your retirement in 2012.  In 2017, the Department of Veterans Affairs assigned you’re a disability rating of 70% for Post-Traumatic Stress Disorder (PTSD) and determined you were individually unemployable. 
 
The Board carefully considered your arguments that you deserve to be placed on the disability retirement list, and upgrade to your characterization of service, and have your non-judicial punishments from 1988 set aside with restoration of rank and pay.  You assert that you developed PTSD in 1985 that contributed to your misconduct that formed the basis for your administrative separation.  Further, you argue that you were misdiagnosed with a personality disorder when you were unfit for continued naval service due to PTSD.  Unfortunately, the Board disagreed with your rationale for relief.  In making their findings, the Board substantially concurred with the advisory opinion in your case. 
 
First, the Board concluded the preponderance of the evidence does not support your placement on the disability retirement list.  In order to qualify for military disability benefits through the Disability Evaluation System with a finding of unfitness, a service member must be unable to perform the duties of their office, grade, rank or rating as a result of a qualifying disability condition.  Alternatively, a member may be found unfit if their disability represents a decided medical risk to the health or the member or to the welfare or safety of other members; or the member’s disability imposes unreasonable requirements on the military to maintain or protect the member.  In your case, the Board concurred with the advisory opinion that the evidence does not support a finding of unfitness based on your demonstrated ability to perform your duties prior to your discharge.  Your performance marks during the period of 14 July 1988 through your date of discharge shows you were performing above fleet standards for your paygrade and rate.  You scored an overall average of 3.6 despite the existence of your PTSD.  In the Board’s opinion, this was strong evidence that you were fit for active duty and would have been medically eligible for continued service but for your misconduct.  Further, as pointed out in the advisory opinion, at no time did your medical providers determined that you required to be placed on limited duty for your mental health symptoms.  So despite your arguments that you were misdiagnosed, your symptoms at the time were not sufficiently impairing to merit a referral to the Disability Evaluation System.  The Board also considered that you were able to work successfully both as a crane operator and volunteer fire fighter well over 20 years after your discharge from the Navy despite your PTSD.   
 
Second, the Board concluded that the preponderance of the evidence does not support setting aside your non-judicial punishments from 1988 due to your mental health condition.  The Board concluded there was insufficient evidence to find that you were not mentally responsible for your misconduct.  Further, after applying liberal consideration, the Board determined that clemency was not appropriate in your case.  In examining the punishment awarded by your command, the Board noted you received two suspended reduction in paygrade and minor forfeitures despite serious misconduct that easily could have merited restriction, extra duties, and higher forfeitures.  This led the Board to conclude you were, more likely than not, already given the benefit of mitigation to your punishment due to your existing personal issues including alcohol abuse.  Therefore, the Board determined further clemency was not warranted based on your mental health condition. 
 
Third, the Board concluded that the preponderance of the evidence does not support an upgrade to your characterization of service.  Despite finding that a nexus exists between your mental health condition and your misconduct, the Board determined that your assigned characterization of service remains supported by the evidence due to the seriousness of your misconduct.  In applying liberal consideration to your case, the Board found that your misconduct was sufficiently serious to qualify for an Other than Honorable characterization of service.  Aside from the multiple unauthorized absences, in the Board’s opinion, dereliction of duty and failing to obey an order are two military offenses that constitute a significant departure from the conduct expected of a member of the Navy since they have the potential for a significant negative impact on good order and discipline of a command.  Therefore, the Board felt you already received the benefit of mitigation of your misconduct when you were assigned a General under Honorable conditions characterization of service by the Navy and that your current characterization of service remains appropriate even after applying liberal consideration in light of your mental health condition.  Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to your record.   
 
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 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,