Docket No: 5158-20 
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.     
  
A three-member panel of the Board, sitting in executive session, considered your application on 7 June 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 the 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, to include 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).In addition, the Board considered the advisory opinion (AO) furnished by a qualified mental health professional dated 1 April 2021, which was previously provided to you. 
   
You enlisted in the Navy and began a period of active duty on 29 January 1974.  On 31 May 1974, you were held after completion of “A” school, as a result of pending charges by civil authorities for conspiracy to commit armed robbery.  On 21 November 1974, you were found guilty of a lesser included offense of concealment of a crime.  On 7 February 1975, you were found guilty of a disorderly person charge, which was reduced from the original charge of concealment of a deadly weapon, and which occurred in May 1974.  On 20 April and 31 May 1975, you received nonjudicial punishment (NJP).  The offenses included, unauthorized absence, and possession of marijuana.  On 2 October 1975, you were convicted by special court-martial (SPCM) of selling possessing, use of, and transferring heroin for the purpose of sale.  You were sentenced to a forfeiture of pay, a reduction in paygrade, confinement at hard labor and a bad conduct discharge (BCD).  You received your BCD on 19 October 1976. 
  
  
A qualified mental health professional reviewed your request for correction to your record and provided the Board with an AO regarding your assertion that you were suffering from PTSD during your service.  The AO noted that, there is sufficient direct evidence you exhibited behaviors associated with a mental health condition during your military service and some of your misconduct may be mitigated by your mental health condition. 
 
The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in your case in accordance with the Wilkie Memo.  These included, but were not limited to your assertions that you were suffering from PTSD at the time of your misconduct as a result of a mission in South Vietnam, and your mental health was not considered at the time of discharge or your special court-martial.  However, the Board concluded these potentially mitigating factors were insufficient to warrant relief.  Specifically, the Board determined that your misconduct, as evidenced by your civil convictions, two NJPs, one of which involved drugs, and SPCM conviction for continued drug involvement, outweighed these mitigating factors.  Additionally, although the Board concurred with the AO in that there is sufficient direct evidence you exhibited behaviors associated with a mental health condition during your military service and some of your misconduct may be mitigated by your mental health condition, the Board did not conclude that your misconduct for which you were separated, could be mitigated by your mental health condition.  Given the totality of the circumstances, the Board determined that your request does not merit relief.  
 
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, 


6/15/2021
Executive Director