DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 6844-20 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 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 25 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). Additionally, the Board also considered an Advisory Opinion (AO) furnished by a qualified mental health provider, which was previously provided to you. Although you were afforded an opportunity to submit an AO rebuttal, you did not do so. 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 originally enlisted in the Navy on 13 July 2001. Your pre-enlistment medical examination on 29 June 2001 and self-reported medical history noted no psychiatric or neurologic conditions or symptoms. On 1 November 2001 following completion of initial training, you reported for duty on board the in , . On 27 June 2002 you received non-judicial punishment (NJP) for a period of unauthorized absence (UA) lasting twenty-eight days and for missing ship’s movement while in a UA status. 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 and missing movement 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 14 August 2002 you received NJP for twenty-seven separate specifications of UA for missing restricted musters. You did not appeal your NJP. On 9 January 2003 you received NJP for two separate specifications of UA and for assaulting another Sailor. You did not appeal your NJP. On 6 March 2003 you received NJP for twenty-one separate specifications of UA for missing restricted musters. You did not appeal your NJP. On 1 April 2003 you were notified that you were being processed for an administrative discharge by reason of misconduct due to a pattern of misconduct, and misconduct due to the commission of a serious offense. You elected to waive your rights to consult with counsel, submit statements to the separation authority, and to request an administrative separation board. Ultimately, on 7 May 2003 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 26 March 2019 the Naval Discharge Review Board (NDRB) determined that your OTH discharge was proper as issued and no change was warranted. The NDRB specifically noted that your records failed to clearly show a nexus between your claimed mental health issue and your misconduct. The NDRB also determined that there was insufficient evidence in your service record to demonstrate any problems or symptoms manifesting themselves on active duty. 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 17 May 2021. The MD initially observed that your traumatic brain injury (TBI) derived from a head injury occurring at work in 2016 and thus was not service-connected. The MD also observed that in your petition you did not describe any traumatic events or psychological sequelae from trauma. The MD noted 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 also noted that there were no concerns cited in your service record warranting referral to mental health services. The MD noted that although you contended you suffered from a mental health condition, you did not provided a description of your symptoms or indicate how they interfered with your ability to function. The MD also noted that there was no evidence presented that indicating your military experience of life stressors was extraordinary or unique or that you met the diagnostic criteria for a mental health condition on active duty. The MD also determined that there was no evidence linking your military misconduct to a mental health condition. The MD concluded by opining the preponderance of available objective evidence failed to establish you were diagnosed with or suffered from a mental health condition on active duty, or that your misconduct could be mitigated by a 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 suffered from an undiagnosed service-connected mental health condition incurred on active duty; (b) you are looking to upgrade your discharge to receive veterans’ services and benefits; and (c) you were diagnosed post-service with multiple mental health conditions. 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 mental health conditions 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. The Board also conclude that even if your pattern of serious misconduct was somehow attributable to any mental health conditions, the severity of your misconduct far outweighed any and all mitigation offered by such mental health conditions. 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 clearly 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, 7/2/2021 Executive Director