Docket No: 4439-20            
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 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 10 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 1 April 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 29 September 1978.  You commenced a period of unauthorized absence on 26 June 1979, which ended by you surrendering to military authorities on 23 August 1979.  You went to Captain’s Mast for this period of unauthorized absence, and your record indicates that your commanding officer referred your case to a summary court-martial, but the result of any such summary court-martial are not contained in your naval records.  You received nonjudicial punishment on 10 December 1979 for a thirteen day period of unauthorized absence.  You then received nonjudicial punishment on 23 August 1980 for being drunk and disorderly, disobeying a lawful order, and for another period of unauthorized absence of over two months.  You went to Captain’s Mast on 27 September 1980 for breaking restriction, missing ship’s movement, failing to have your identification card, and for missing movement.  Your records show that your commanding officer referred these charges to a special court-martial, but the result of any such special court-martial are not contained in your naval records.  Next, on 5 February 1981, you received nonjudicial for being drunk and disorderly and for being disrespectful.  You received nonjudicial punishment again on 27 November 1981, for unauthorized absence and missing movement.  That day you also received a written warning concerning your frequent involvement with military authorities.  On 7 January 1982, you received nonjudicial punishment for another period of unauthorized absence.  That day you were also notified of the initiation of administrative separation processing, and your rights in connection therewith, and waived your right to an administrative discharge board.  Before you could be administratively separated, on 20 January 1982, you commenced another period of unauthorized absence, which ended upon your surrender to military authorities in Minneapolis, Minnesota.  You then submitted a request for the good of the service to receive an other than honorable discharge in lieu of a trial by court-martial.  The separation authority approved your request, and on 28 April 1982, you were discharged with an other than honorable characterization of service. 
 
The Board carefully considered all potentially mitigating factors in your current petition to determine whether the interests of justice warrant relief in your case including in accordance with the Wilkie Memo.  You contend that while you were on active duty you had problems with drinking, and that you were sent to treatment for alcoholism while you were in-service, and that you continued to drink even when you were in treatment.  You also explained that while you were on active duty, your ship was involved in rescuing Vietnamese refugees, and you had to take a baby that had died from its mother, which is a memory that you have carried with you today, and which had recently been triggered by an event in your current employment.  Post-service, you received a bachelor’s degree and you have been very successful.  You have been a firefighter and a first responder for twenty-one years. 
 
In light of your assertion of a mental health condition, the Board received, and reviewed, the 1 April 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. Throughout his disciplinary actions, counselings, and administrative processing, there were no concerns cited which would have warranted referral to mental health resources, other than his in-service treatment 
for Alcohol Dependence.  Although Petitioner claimed he suffered from undiagnosed PTSD, he did not provide any description of symptoms, which would meet the criteria for PTSD or other mental health condition. There is no indication in his military service record or his personal statement his misconduct was the result of a mental health condition. 
 
The AO concluded, “Based on the available evidence, it is my considered medical opinion the preponderance of objective evidence failed to establish Petitioner suffered PTSD or other mental health condition other than substance abuse, 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 commended you for your assertion that you have been a productive member of society post-discharge, but it noted you did not provide material to support this assertion.  The Board also concurred with the finding of the AO that your records do not support that misconduct while you were on active duty could be mitigated by a mental health condition.  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, which included the imposition of nonjudicial punishment and referral to courts-martial on several occasions, 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, 
  
5/16/2021
Executive Director