DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 7978-20 1618-09 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 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 21 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 29 April 2021, which was previously provided to you. You entered a period of active duty in the Navy on 16 August 1976. On 23 April 1977 you received nonjudicial punishment (NJP) for a one day unauthorized absence (UA) in violation of Article 86, Uniform Code of Military Justice (UCMJ). You received a second NJP on 27 June 1977 for using provoking words and assault in violation of Articles 117 and 128, UCMJ. On 3 August 1977 you received a third NJP for another one day UA and missing ship’s movement in violation of Articles 86 and 87, UCMJ. You then entered a 38 day period of UA from 17 September to 25 October 1977 and were convicted by special court martial (SPCM) of Article 86, UCMJ on 10 January 1978. After serving your confinement period as awarded by the court, you entered several periods of UA from 1 April 1978 until 24 May 1985 when you were discharged with an other than honorable characterization of service. Although your record is incomplete, the Board relied on a presumption of regularity to support the official actions of public officers, and in the absence of substantial evidence to the contrary, the Board presumed that they have properly discharged their official duties. Based on your narrative reason for separation of “separation in lieu of trial by court martial” (SILT), the Board presumed that UA charges were referred against you, and you submitted the SILT request through counsel in order to escape trial by court martial. You assert you were in a motorcycle accident that caused physical and mental disabilities. You further assert that your wife was with you on the motorcycle and she did not survive. You state that legally, you were not found at fault for the accident but you have struggled with forgiving yourself for losing your wife and with accepting your mental and physical disabilities. You contend that when you were released from the hospital you attempted to contact your unit three times by phone but you did not follow through. You state that after the accident you found unhealthy coping mechanisms consisting of drug and alcohol abuse. 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 contentions noted above and desire to upgrade your discharge. The Board also relied on the AO in making its determination. The AO noted that although you contended unspecified “physical and mental disabilities,” you did not provide any evidence of an in-service or post-service mental health condition, nor did you describe any symptoms you were experiencing while in-service, diagnostic for a mental health condition. Consequently, the AO concluded that the preponderance of available objective evidence failed to 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 attributed to a mental health condition. Additionally, the Board noted you did not provide sufficient documentation in support of your contentions nor any post-service documentation regarding clemency. Based upon this review, the Board concluded that these potentially mitigating factors were insufficient to warrant relief. Specifically, the Board determined that your misconduct, as evidenced by your NJPs and 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, 7/23/2021 Executive Director