DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No. 6990-20 Ref: Signature Date Dear Petitioner: 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 6 August 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 the advisory opinion (AO) furnished by a qualified mental health provider, which was previously provided to you. Although you were afforded an opportunity to submit a rebuttal, you did not do so. You originally enlisted in the Navy on 20 November 2001. Your pre-enlistment medical examination on 19 October 2001 and self-reported medical history both noted no psychiatric or neurologic conditions or symptoms. On 19 February 2002 you commenced a period of unauthorized absence (UA) that terminated after 51 days on 11 April 2002. On 13 April 2002 you commenced a second UA period that terminated after 10 days with your arrest by Escambia County Police. Following your return to military control on 24 April 2002, you were notified that you were being processed for an administrative discharge by reason of misconduct due to the commission of a serious offense. On 21 May 2002 your discharge was directed and approved for misconduct due to the commission of a serious offense with an other than honorable (OTH) characterization by the Commanding Officer, . Ultimately, on 21 May 2002 you were discharged in absentia from the Navy for misconduct with an OTH characterization of service and assigned an RE-4 reentry code after completing just over six months of active duty service. Unfortunately, some of the administrative separation (Adsep) documents are not in your record. However, the Board relied on a presumption of regularity to support the official actions of public officers, and given the narrative reason for separation and corresponding separation and reentry codes as stated on your Certificate of Release or Discharge from Active Duty (DD Form 214), the Board presumed that you were properly processed and discharged from the Navy for misconduct due to the commission of a serious offense after waiving your right to an Adsep board. The Board noted that in blocks 25 through 28 of your DD Form 214 it states: “MILPERSMAN 1910-142,” “HKD,” “RE-4,” and “Misconduct,” respectively. Such DD Form 214 notations collectively refer to a discharge involving the commission of a serious offense (UA) with an Adsep board waiver. As part of the Board review process, the Board’s Physician Advisor who is a licensed clinical psychologist (Ph.D.), reviewed your contentions and the available records, and issued an AO dated 23 April 2021. The PhD noted that your active duty records did not contain evidence of a mental health diagnosis or psychological/behavioral changes indicating a mental health condition. The PhD determined that although you contended you suffered from a mental health condition which resulted in your UA, you did not provide a description of symptoms or indicate how they interfered with your ability to function. The PhD concluded by opining that the preponderance of available objective evidence failed to establish you were diagnosed with a mental health condition, suffered from a mental health condition on active duty, or your in-service 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: (a) that you were discharged under mentally ill conditions, (b) you were mentally ill on active duty and are still today, and (c) with all of your mental health conditions including ADHD, bipolar disorder, OCD, and borderline personality disorder, you were not able to function as needed. However, given the totality of the circumstances, the Board determined that your request does not merit relief. In accordance with the Kurta, Hagel, 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 convincing evidence that you suffered from any type of mental health condition while on active duty, or that any such mental health condition was related to or 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 observed that you did not submit any clinical documentation or treatment records to support your mental health claims despite a request from the Board on 5 October 2020 to specifically provide additional documentary material. The Board determined the record clearly reflected that your active duty 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. 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. You left the Navy while you were still contractually obligated to serve and you went into a UA status without any legal justification or excuse two separate times totaling approximately 61 days. Lastly, absent a material error or injustice, the Board declined to summarily upgrade a discharge solely for the purpose of facilitating 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. Additionally, despite the fact that some of your Adsep records were not in your service record, the Board relies on a presumption of regularity to support the official actions of public officers. In the absence of substantial evidence to rebut the presumption, to include evidence submitted by the Petitioner, the Board presumed that you were properly processed for separation and discharged from the Navy. In the end, the Board concluded that you received the correct discharge characterization based on your circumstances, and that such OTH characterization was in accordance with all Department of the Navy directives and policy at the time of your discharge. Finally, the Board determined that you had a legal, moral, and ethical obligation to remain truthful on your enlistment paperwork. If you were indeed suffering from multiple pre-service mental health conditions, and if you had properly and fully disclosed such conditions on your enlistment application, the Board determined that you would have been disqualified from enlisting in the Navy. 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, 8/18/2021 Executive Director