Docket No:  5477-20 
 
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 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 Office of the Under Secretary of Defense for Personnel and Readiness (Kurta Memo).  A three-member panel of the Board, sitting in executive session, considered your application on 2 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 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, 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).  The Board also considered an advisory opinion (AO) from a qualified mental health professional dated 18 March 2021, which was previously provided to you. 
 
You entered a period of active duty in the Navy on 24 April 1990.  You received nonjudicial punishment on 5 January 1991 for drunk and disorderly conduct and wrongful communication to others of racially offensive language in violation of Article 134, Uniform Code of Military Justice (UCMJ).  On 24 January 1991 you received a second NJP for six specifications of failure to go to your appointed place of duty in violation of Article 86, UCMJ.  You received a third NJP on 26 June 1991 for dereliction in the performance of duties in violation of Article 92.  On 26 June 1991you were notified of administrative separation processing by reason of misconduct due to a pattern of misconduct as evidenced by your service record book.  On 6 July 1991 you acknowledged the letter of notification and were made aware that you could receive an other than honorable (OTH) characterization of service.  You exercised your right to consult with counsel, submitted a written statement on your behalf, and waived an administrative board hearing.  You requested a general (under honorable conditions) characterization of service.  The separation authority directed your command to offer you in-patient treatment at a Department of Veterans Affairs (VA) hospital on 16 July 1991.  You received a fourth NJP on 18 July 1991 for eleven specifications of being absent from your appointed place of duty.  On 4 September 1991 you were discharged with an OTH characterization of service. 
 
You contend your command never informed you that you could stay in the service.  You also state you were not given legal advice on how to be retained or how to contest your characterization of service.  You further contend you have PTSD from serving, and you are diagnosed by the VA. 
 
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 contentions noted above and desire to upgrade your discharge.  The Board also relied on the AO in making its determination.  The AO noted that although you provided evidence of a post-discharge diagnosis of depression, there is no indication your substance use or misconduct were the result of depressive symptoms experienced during military service.  Accordingly, the AO concluded the preponderance of available objective evidence failed to establish you suffered from a mental health condition at the time of your military service or that your in-service misconduct could be mitigated by a mental health condition.  Based upon this review, the Board concluded that these potentially mitigating factors were insufficient to warrant relief.  Specifically, the Board determined that your misconduct, as evidenced by your multiple NJPs, outweighed these mitigating factors.  Accordingly, 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, 
  									      7/2/2021
									      Executive Director