DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 7708-20 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 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 30 April 2021, which was previously provided to you. The Board determined your personal appearance, with or without counsel, would not materially add to their understanding of the issues involved. Therefore, the Board determined a personal appearance was not necessary and considered your case based on the evidence of record. You enlisted in the Navy on 11 August 1998. On 30 June 1999, you received nonjudicial punishment (NJP) for an 11-day unauthorized absence (UA) and missing movement. On 8 August 1999, you received a second NJP for failure to go to restriction muster on three occasions. On 1 May 2002, you received a third NJP for wrongful use of cocaine. On 8 August 2002, you received an administrative remarks entry documenting you had been involuntarily held beyond normal expiration of obligated service awaiting trial by court-martial but the specific charges were not included in the entry. On 4 September 2002, you received a fourth NJP for a five-day UA. On 28 August 2003, you submitted a written request for discharge for the good of the service to avoid trial by court-martial for an UA period from 4 December 2002 to 27 August 2003. Prior to submitting this request, you waived your right to consult a qualified military lawyer who would have advised you of your rights and warned of the probable adverse consequences of accepting such a discharge. The discharge authority directed your discharge with an other than honorable (OTH) character of service. As a result, you were spared the stigma of a court-martial conviction, as well as the potential penalties of such a punitive discharge. On 25 September 2003, you were discharged with an OTH character of service. As part of the Board’s review, a qualified mental health professional reviewed your request and provided the Board with an AO on 30 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 depression, you indicated the depression started after you were held past your enlistment release date which would have occurred after your misconduct and therefore does not mitigate your misconduct. 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 30 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 discharge was improper because you were “so close to finishing [your] tour of duty” and “it was unfair” to give you a “bad discharge.” The Board also considered the giving statements, proof of your insurance license, and advocacy letters from your coworker and employer that were submitted in support of your request for relief. Unfortunately, the Board, applying liberal consideration and relying on the AO, did not find evidence of an error or injustice that warrants upgrading your characterization of service, changing your separation reason and reenlistment code, or granting clemency in the form of an upgraded characterization of service. The Board determined your post-service record and submitted clemency matters did not overcome your serious, repetitive, and drug-related misconduct. Finally, the Board noted you received a benefit from being allowed to separate with an OTH character of service instead of risking greater punishment at a court-martial. 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 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 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, 7/1/2021 Executive Director