Docket No: 8694-20            
Ref: Signature Date 
 
Dear : 
 
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 21 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, 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 requested and reviewed a 6 May 2021 advisory opinion (AO) from a mental health professional, a copy of which was provided to you 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 on 20 June 1989.  You were on periods of unauthorized absences from 5 to 6 July 1990, and from 10 October 1990 to 11 November 1990, each time you surrendered to military authorities.  On 18 January 1991, you were convicted by a special court-martial for failing to obey an order and failing to prepare for an inspection, resisting apprehension on two occasions, using methamphetamines, pushing a detective on the chin with your fist, attempting to steal approximately $160, and four instances of unauthorized absence offenses.  Your sentence from the court-martial included a bad conduct discharge.  On 6 March 1992, your bad conduct discharge was executed and you were so discharged.   
 
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 that you were suffering from a mental health condition and as such, you should have received a better characterization of service.   
 
In light of your assertion of a mental health condition, the Board received, and reviewed, the 6 May 2021 AO.  The AO reviewed your service and medical records as well as all of the materials that you submitted.  The AO explained that your service record included a psychiatric consultation report, dated 20 February 1990, to include psychiatric testing” but that there was “no mention of psychotic, mood, or anxiety disorder symptoms within the report.”  The AO also reviewed the letter that you provided by your treating psychologist, and noted that, within that report, “there was no further explanation of traumatic stressors or effect on his behavior and military function or linkage to his inservice misconduct.”  The AO further explained: 
 
Petitioner’s in-service records did not contain evidence of a diagnosis of a mental health condition; however, he was referred for a psychiatric consult in connection to his hand injury.  The consultation did not indicate a mental health condition.  Although Petitioner’s description of his treatment while incarcerated could have led to exacerbation of PTSD symptoms, this would have occurred after his misconduct. Petitioner also provided alternative reasons for the misconduct.  For example, he explained he did not use methamphetamine, but thought his father put it in his beer.  In addition, he also acknowledged three unauthorized absences, which would not be mitigated by PTSD symptoms.  One was to attend his grandmother’s funeral, one was because he was arrested, and one was because he elected to seek representation.  The information made available did not provide enough markers to identify a nexus with his misconduct. 
 
The AO concluded, “it is my considered medical opinion the preponderance of available objective evidence failed to establish Petitioner was diagnosed with a mental health condition, suffered from a mental health condition at the time of his military service, or his inservice misconduct could be attributed to 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 concluded the potentially mitigating factors that you raised were insufficient to warrant relief, especially given the serious offenses for which you were found guilty at court-martial.  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 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,
6/22/2021
Executive Director