Docket No: 7982-20 Ref: Signature Date Dear Petitioner: This is in reference to your application for correction of your naval record pursuant to Title 10, United States Code, Section 1552. After careful and conscientious consideration of the entire record, the Board for Correction of Naval Records (Board) found the evidence submitted was 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 Under Secretary of Defense for Personnel and Readiness regarding requests by Veterans for modification of their discharge due to mental health conditions, sexual assault, or sexual harassment (Kurta Memo). A three-member panel of the Board, sitting in executive session, considered your application on 12 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, including 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 reviewed a 30 May 2021 advisory opinion (AO) from a mental health professional, a copy of which you were provided and to which you did not provide a response. The Board determined that your personal appearance, with or without counsel, would not materially add to their understanding of the issues involved. Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record. You enlisted in the Navy and commenced a period of active duty on 22 March 1993. On 25 January 1994, you were disenrolled from Level II alcohol treatment as a failure. On 25 January 1994, you were issued a written warning concerning your treatment failure. On 11 March 1994, you received nonjudicial punishment for failing to go to your appointed place of duty on two occasions, unauthorized absence, provoking speeches and gestures, and assault. That same day you were issued a written warning concerning your misconduct. On 26 August 1994, you received nonjudicial punishment for leaving your place of duty and failing to obey an order on two occasions. That same day you were issued a written warning concerning your misconduct. On 10 October 1994, you completed Level II alcohol treatment. On 27 September 1996, you received nonjudicial punishment for disobeying the order of an officer, being disrespectful to a chief petty officer, and being incapacitated for duty. That day you were also notified of the initiation of administrative separation processing and your rights in connection therewith. You waived your right to an administrative board as a result of a legal negotiation that you conducted with the assistance of an attorney. As a result of that negotiation, your command agreed to dispose of your charges by the aforementioned nonjudicial punishment, upon your agreement to accept nonjudicial punishment and to waive an administrative discharge board, rather than at a different forum. On 29 October 1996, the separation authority directed that you be discharged with an other than honorable characterization of service. On 5 December 1996, you were so discharged. In 2002, you filed an application with the Naval Discharge Review Board (NDRB) in which you contended that your alcohol dependence and post-service activities support an upgrade to your discharge characterization. On 22 May 2003, the NDRB denied your application. In 2011, you filed a petition with this Board. Your specific contentions in that petition are not apparent from the correspondence, but on 19 January 2012, this Board denied your petition. The Board carefully considered all potentially mitigating factors in your petition to determine whether the interests of justice warrant relief in your case including in accordance with the Wilkie Memo. You contend in your petition that, recently, while going through therapy, you discovered that during your time in the service, you suffered from mental health conditions, including PTSD, which mitigates your misconduct. In light of your assertion of a mental health condition, the Board received, and reviewed, the 30 May 2021 AO. The AO reviewed your naval records as well as all of the materials that you submitted, and explained that, although you “indicated that PTSD and Depression were conditions related to his request, he did not provide any evidence of these conditions impairing his ability function in his military duties, nor a linkage to his misconduct behaviors.” The AO also noted that, while the Department of Veterans’ Affairs granted service-connection for your “depressive disorder for treatment only,” it did not grant service connection, nor was any clinical history provided to counter the available in-service evidence contemporary to your military service. The AO concluded that, “it is my considered medical opinion though Petitioner was diagnosed with an alcohol use disorder during his military service, the preponderance of objective evidence failed to establish Petitioner was diagnosed in-service with additional mental health conditions, suffered from additional mental health conditions at the time of his military service, or that his in-service misconduct could be mitigated by a mental health condition.” In review of all of your materials, the Board did not find an injustice in your record warranting relief. The Board concurred with the finding of the AO and it did not find a nexus between your asserted mental health condition such that it would mitigate the misconduct you engaged in while on active duty. In conclusion, given the totality of the circumstances, as well as a review of your overall service record, the Board determined that your request does not merit relief. You are entitled to have the Board reconsider its decision upon the 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, 7/14/2021 Executive Director