DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 

Docket No: 7751-20 
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 9 July 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 15 June 2021 and your undated rebuttal response. 

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 17 July 1998. On 26 March 1999, you received nonjudicial punishment (NJP) for an unauthorized absence (UA), which began on 11 January 1999 and ended 70 days later on 22 March 1999, and missing ship’s movement on four separate occasions. On 1 July 1999, you received a second NJP for failure to go to your appointed place of duty on two occasions. Subsequently, you were notified of pending administrative separation action by reason of misconduct due to pattern of misconduct. Although the notification document is not in your record, it is referenced in the Commanding Officer’s (CO) recommendation. After you waived your procedural rights, your CO recommended you be discharged with an other than honorable (OTH) characterization of service due to pattern of misconduct. The discharge authority approved this recommendation and directed discharge with an OTH characterization of service by reason of misconduct. On 30 July 1999, 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 15 June 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. Specifically, the AO stated that throughout your military service, disciplinary actions, counselings, and administrative processing there were no concerns noted which would have warranted referral to mental health resources. Additionally, the AO noted that your post-discharge mental health evaluation indicated a timeline of psychological symptoms developing after your first misconduct and initial exposure to perceived racism. Further, noting you provided an alternative explanation for the misconduct events that led to your second NJP, the AO stated you did not attribute your misconduct to be a result of symptoms or distress arising from a mental health disorder. Additionally, the AO stated the clinical opinion from the post-discharge evaluating mental health provider indicated a diagnosis of PTSD whose significant negative effect on occupational and personal functioning appears to have primarily developed post-discharge and could be only minimally attributable to your in-service experiences. 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 17 June 2021. You provided an undated rebuttal to the AO which was submitted to the Board for review.
 
The Board carefully reviewed your application, weighed all potentially mitigating factors, and considered your contention that you attempted to resolve your issues properly through the chain of command and tried, despite your age and maturity, to make the best decisions possible until your “chain of command turned their backs on [you] because of the stereotypes that young black men received.” The Board considered your contention that your “situation would have never gotten to the point that [you] had to choose between [your] career and [your] family if [you weren’t] from African descent.” Additionally, the Board considered your contention that you were unable to perform your labor-intensive job as a deck seaman due to being on light limited duty and under the influence of medication. The Board also considered your narrative explanation of your time in service and your contention your command did not care about you and disregarded your concerns for your grandmother’s quickly deteriorating health. 

The Board considered your explanation that you were on leave caring for your grandmother and making arrangements for another relative to care for her. You explained that you remained absent past your leave expiration but that you called your supervisor weekly until you surrendered to a local recruiting office. The Board further considered your contention you “went into a deep bottomless depression” after your CO retained you at NJP. Additionally, the Board considered your contentions the chain of command called you a “menace aboard the ship,” a fake, a phony, and a bad influence due to how you responded after the vehicle accident which resulted in your assignment to limited duty and prescription to medication. You further contend that at NJP, the CO called you “foul and inappropriate” names and stated that you were a disgrace to the Navy, but also to your family and especially your grandmother. The Board also considered your AO rebuttal and the list of actions by enlisted and officers “which exhausted [your] trust and confidence.”
 
The Board also considered your post-service statement that you are “the example of hard work and dedication, because against all odds, [you] have achieved but there’s still work to be done.” The Board considered each of the advocacy letters submitted on your behalf which share aspects of your character, continued service to the community, and your accomplishments and contributions. The Board also considered the supporting documents that highlight your post-service record of accomplishments. 

Unfortunately, the Board did not find evidence of an error or injustice that warrants upgrading your characterization of service or changing your discharge to a medical discharge. 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 also concluded there was insufficient evidence that your contended medical condition rendered you unfit for duty or warranted medical discharge.
 
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, which included a lengthy UA and missing ship’s movement on four separate occasions, 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, 
8/5/2021