Docket No 5957-20

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 limitation 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 11 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 provider and the materials you submitted in rebuttal to the AO. 
 
You originally enlisted in the Navy on 11 February 1989.  Your pre-enlistment medical examination on 7 December 1988 and self-reported medical history noted no psychiatric or neurologic conditions or symptoms.        
 
On 22 February 1990 you received non-judicial punishment (NJP) for two separate specifications of unauthorized absence (UA).  You did not appeal your NJP.  On 7 June 1990 you received NJP for two more specifications of UA lasting fifteen days and one day, respectively.  You did not appeal your NJP.  On the same day your command issued you a “Page 13” retention warning (Page 13).  The Page 13 noted your UA deficiencies and expressly warned you that any further deficiencies in your performance and/or conduct may result in disciplinary action and in the processing for administrative discharge.  Unfortunately, on 11 July 1991 you received NJP for five separate specifications of UA, making a false official statement, and making/uttering checks with insufficient funds totaling approximately $1,125.  You did not appeal your NJP.   
 
On 17 July 1991 you were notified that you were being processed for an administrative discharge by reason of misconduct due to a pattern of misconduct.  You exercised your rights to consult with counsel and to present your case to an administrative separation board (Adsep Board).     
   
On 9 August 1991 an Adsep Board convened in your case.  At the Adsep Board you were represented by a Navy Judge Advocate.  Following the presentation of evidence and witness testimony, the Adsep Board members unanimously determined that you committed misconduct as charged.  Subsequent to the unanimous misconduct finding, the Adsep Board members recommended that you be separated from the naval service with an other than honorable (OTH) characterization of service.  Ultimately, on 30 September 1991 you were discharged from the Navy for a pattern of misconduct with an OTH characterization of service and assigned an RE-4 reentry code.   
 
On 16 January 2003 the Naval Discharge Review Board determined that your OTH discharge was proper as issued and no change was warranted.  On 19 October 2004 the Board denied your initial petition for relief.  On 8 April 2019 the Board denied your second petition for relief. 
 
As part of the review process, the BCNR Physician Advisor who is also a medical doctor (MD) and a Fellow of the American Psychiatric Association, reviewed your mental health contentions and the available records and issued an AO dated 16 April 2021.  The MD initially observed that your active duty military records did not contain any evidence of a mental health condition or psychological/behavioral changes indicating a mental health condition.  The MD determined that throughout your disciplinary actions, counselings, and administrative processing, there were no concerns cited warranting referral to mental health services.  The MD noted that although you provided evidence of a post-discharge PTSD diagnosis, there was no report of specific traumatic events from your military or wartime experiences.  The MD concluded by opining the preponderance of objective evidence failed to establish you suffered from PTSD on active duty, or that your misconduct could be attributed to PTSD or any other 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 Kurta, Hagel, and Wilkie Memos.  These included, but were not limited to your contentions that:  (a) you fought for your country and served honorably; (b) you were told for years by your father that you had PTSD; (c) you would like your discharge upgraded so you can receive certain veterans’ benefits; (d) since your separation from the Navy you have realized the error of your ways on active duty and have continued to improve yourself and worked hard to become a productive member of society; (e) you have maintained steady employment and have started a family; and (f) you truly believe that PTSD played a role in the behavior underlying your discharge.  However, given the totality of the circumstances, the Board determined that your request does not merit relief.   
 
In accordance with the Hagel, Kurta, and Wilkie Memos, the Board gave liberal and special consideration to your record of service, and your contentions about any traumatic or stressful events you experienced and their possible adverse impact on your service.  However, the Board concluded that there was no nexus between any PTSD and/or related symptoms and your misconduct, and determined that there was insufficient evidence to support the argument that any such mental health conditions mitigated the misconduct that formed the basis of your discharge.  As a result, the Board concluded that your misconduct was not due to mental health-related symptoms.  Moreover, the Board also observed that two of your three NJPs occurred prior to any Desert Shield/Desert Storm deployment and thus would not otherwise be attributable to any mental health conditions arising from that deployment.  The Board also determined that even if your pattern of serious misconduct was somehow attributable to a mental health condition, the severity of your misconduct outweighed any and all mitigation offered by such mental health condition.  The Board determined the record clearly reflected that your misconduct was willful and demonstrated you were unfit for further service.  The Board also determined that the evidence of record did not demonstrate that you were not mentally responsible for your conduct or that you should otherwise not be held accountable for your actions.       
 
The Board noted that there is no provision of federal law or in Navy/Marine Corps regulations that allows for a discharge to be automatically upgraded after a specified number of months or years.  The Board did not believe that your record was otherwise so meritorious as to deserve a discharge upgrade and determined that Sailors should receive no higher discharge characterization than is due.  The Board determined that characterization under OTH conditions is appropriate when the basis for separation is the commission of an act or acts constituting a significant departure from the conduct expected of a Sailor.  Lastly, absent a material error or injustice, the Board generally will not summarily upgrade a discharge solely for the purpose of facilitating VA benefits, or enhancing educational or employment opportunities.  The Board carefully considered any matters submitted regarding your post-service conduct and accomplishments, however, even in light of the Wilkie Memo and reviewing the record holistically, the Board still concluded that given the totality of the circumstances your request does not merit relief.  Accordingly, the Board determined that there was no impropriety or inequity in your discharge, and even under the liberal consideration standard, the Board concluded that your pattern of misconduct merited your receipt of an OTH.   
 
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, 
6/16/2021
Executive Director