Docket No: 7101-20 
 
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 23 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 25 April 2021, which was previously provided to you.   
 
You enlisted in the Navy on 15 September 1986.  On 3 March 1987, you received nonjudicial punishment for a 17-day unauthorized absence (UA) and failure to obey an order.  On 25 May 1988, you were convicted by special court martial (SPCM) for failure to obey a lawful general order and three periods of unauthorized absence from 19-21 May 1987, 2-4 July 1987, and 7 July 1987 to 26 February 1988.  You were sentenced to confinement, reduction in rank, forfeiture and a bad conduct discharge (BCD).  Your record is incomplete in that it does not contain appellate documentation, but a review of your Certificate of Release or Discharge from Active Duty (DD Form 214) reflect the BCD was subsequently approved at all levels of review.  On 18 January 1989, you were discharged. As part of the Board’s review, a qualified mental health professional reviewed your request and provided the Board with an AO on 25 April 2021.  The AO stated your in-service records do not contain evidence of a diagnosis of a mental health condition or psychological/behavioral changes that may have indicated a mental health condition.  Although you contend you suffered from undiagnosed PTSD, you did not provide any description of symptoms which would meet the criteria for PTSD.  Further, the AO stated there is no evidence presented which indicates you were exposed to trauma or when your symptoms began to manifest.  Based on the available evidence, the AO concluded the objective evidence does not establish you were diagnosed with a mental health condition, 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.  The AO was provided to you on 27 April 2021 and you were given 30 days in which to respond.  When you did not respond after 30 days, your case was submitted to the Board for review.   
 
The Board carefully reviewed your application, weighed all potentially mitigating factors, and considered your contention that your character of service does not reflect nor is it commensurate with the majority of your military service.  Specifically, you contend your military evaluations were excellent and “only a small fraction of [your] military service involved infractions.”  The Board also considered your contention that your “set of circumstances applied to today’s regulations would result in a different discharge.”  Further, the Board considered your contention your civilian infractions were “used to penalize [your] military service discharge and, because you had “paid the penalty” for your civilian infractions, this represented “jeopardy of a double nature and is not equitable” but noted there is no indication of civilian infractions in the record nor did you submit any supporting documentation.  Lastly, the Board considered your contention you “received no advice or counsel” and “received consideration less than due process and at no time the opportunity or benefit of military counsel or advice” but noted there is no indication in the record that you were not represented by counsel at your SPCM nor did you submit any documentation to overcome the presumption of regularity.  Unfortunately, the Board did not find evidence of an error or injustice nor did you submit any advocacy letters or documentation for consideration that warrants changing your BCD.   The Board, relying on the AO and applying liberal consideration, concluded there was insufficient evidence of an error or injustice that warrants granting clemency in the form of an upgraded characterization of service. 
 
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 desire to upgrade your discharge and your contentions discussed above.  Based upon this review, the Board concluded these potentially mitigating factors were insufficient to warrant relief.  Specifically, the Board determined your misconduct, as evidenced by your SPCM, 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,  
6/29/2021
Executive Director