Docket No: 7984-20 
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 16 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 19 May 2021.   
 
You enlisted in the Navy on 11 May 1992.  On 12 May 1995, you received nonjudicial punishment (NJP) for two instances of unauthorized absence (UA), failure to obey an order to maintain an alert watch, and disorderly conduct.  On 28 May 1995, you received a second NJP for UA from two restriction musters, disrespecting a petty officer, failure to obey an order to report to restriction muster, assaulting a petty officer by shoving him backwards, and disorderly conduct.  On 5 July 1995, you received a third NJP for failure to obey an order to properly monitor the danger area around Mount 51 and wrongfully carrying a cigarette lighter into an ammunition magazine.  Subsequently, you were notified of pending administrative separation action by reason of misconduct due to pattern of misconduct.  After you waived your procedural rights and submitted a statement for consideration, your Commanding Officer (CO) recommended you be discharged with an other than honorable (OTH) characterization of service due to pattern of misconduct.  While awaiting processing, you received a fourth NJP for two instances of UA and three instances of failure to obey an order.  On 31 August 1995, the discharge authority approved the CO’s recommendation and directed discharge with an OTH characterization of service by reason of misconduct.  On 27 October 1995, 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 19 May 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 although you assert you suffered from a mental health condition, you did not provide any evidence of symptoms, traumatic events, or a post-service clinical diagnosis to support your claim.  Based on the available evidence, the AO concluded the 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 19 May 2021, and you were given 30 days to respond.  When you did not respond within 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 you were “going through a lot of mental and emotional issues” but the command refused your repeated requests for treatment because the command said “we don’t have time to get you help for something you don’t need and be down a man.”  The Board also considered your contention the Navy “just let [you] go’” with no offer of mental or chemical dependency treatment.  Further, the Board noted your regret, acceptance of responsibility for your misconduct, and understanding that the command was not properly equipped to recognize and treat service members who were suffering from depression and other mental/emotional disorders.  Lastly, the Board considered your contention that your ineligibility for benefits prevented you from receiving help with your severe depression and chemical dependency issues and indirectly resulted in you committing crimes in 2015 which led to federal imprisonment.  The Board also noted you did not did not submit advocacy letters or post-service documents to be considered for clemency purposes. 
 
Unfortunately, the Board did not find evidence of an error or injustice that warrants upgrading your characterization of service.  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 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,  

8/9/21

Executive Director