Dear :  
 
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 19 March 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, an Advisory Opinion (AO) from a qualified mental health provider, 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).    
 
You enlisted in the Navy on 28 February 1977.  On 18 January 1978 you received non-judicial punishment (NJP) for unauthorized absence (UA).  On 12 July 1979 your dive school physical examination and medical history noted no psychological or neurological conditions or symptoms.  On 6 June 1980 you received NJP for sleeping on watch underway and for UA lasting sixteen days. 
 
On 23 July 1981 you were convicted at a Special Court-Martial (SPCM) of missing ship’s movement, and three separate UA specifications lasting less than one day, 56 and 219 days, respectively.  You received as punishment three months of confinement, forfeitures of pay, a reduction in rank to the lowest enlisted paygrade (E-1), and a discharge from the Navy with a Bad Conduct Discharge (BCD).  In the interim, your separation physical examination on 23 September 1981 noted no psychological or neurological conditions or symptoms.  Upon the completion of appellate review in your case, on 20 October 1982 you were discharged from the Navy with a BCD and assigned an RE-4 reentry code.   
 
As part of the review process, the Board’s Physician Advisor, who is also a medical doctor (MD) and a Fellow of the American Psychiatric Association, reviewed your contentions and the available records, and issued an AO dated 8 February 2021.  The MD initially noted that in November 1978 you suffered a broken jaw and scalp laceration during a fight when you were hit with a cue stick.  The MD noted that your in-service records document your November 1978 fight and subsequent treatment for a scalp laceration and broken jaw.  However, the MD observed that your in-service records indicate that you were returned to full duty in January 1979 without a traumatic brain injury (TBI) diagnosis or TBI residuals.  The MD also noted that your July 1979 Dive School physical denied any medical or mental health symptoms or conditions and deemed you medically qualified for Dive School.  The MD observed that during your separation physical over twenty-six months later in September 1981, the Medical Officer similarly did not endorse any medical, psychological, or neurological conditions or symptoms and deemed you medically qualified for discharge.  The MD further noted that the remainder of your military records did not contain any evidence of a TBI diagnosis, or any other mental health condition or psychological/behavioral changes indicating TBI or any other mental health condition.  The MD observed that the 2015 post-discharge neuropsychiatric evaluation you provided did not contain a diagnosis of TBI or chronic traumatic encephalopathy (CTE) nor any clinical association with your military service or misconduct.  The MD noted that other medical documentation you submitted either made no mention of TBI symptoms associated with your military service or misconduct, or referenced a 2007 head injury.  The MD concluded by opining that evidence failed to establish you were diagnosed with TBI, suffered from TBI or any other mental health condition on active duty, or that your misconduct was attributed to TBI or any other mental health condition.   
 
The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in your case in accordance with the Hagel, Kurta, and Wilkie Memos.  These included, but were not limited to:  (a) you suffered and continue to suffer from undiagnosed and untreated TBI, (b) your records show you suffered a head injury in November 1978 but you were not diagnosed or treated for TBI at such time, (c) after your head injury there is reason to suspect your behavior was adversely affected by TBI, and (d) subsequent to your head injury you were not feeling well and most likely not performing as you were prior to the injury.  However, given the totality of the circumstances, the Board determined that your request does not merit relief.    
 
The Board noted that in response to the adverse AO you submitted rebuttal materials for consideration.  In accordance with the Hagel, Kurta, and Wilkie Memos, the Board gave liberal and special consideration to your record of service, and your contentions about any traumatic or stressful events you experienced and their possible adverse impact on your service.  However, even under the liberal consideration standard, the Board concluded that there was no nexus between any TBI, mental health conditions and/or their related symptoms and your misconduct, and determined that there was insufficient evidence to support the argument that any such mental health conditions mitigated the misconduct that formed the basis of your discharge.  Even under the liberal consideration standard, the Board concluded that your misconduct was not due to either TBI or mental health-related conditions or symptoms.  The Board also noted that the evidence of record did not demonstrate that you were not mentally responsible for your conduct or that you should not be held accountable for your actions.   
 
Additionally, the Board noted that your periodic evaluations in June of 1978 and January 1980 remained consistent and did not indicate any declines or deficiencies in conduct and/or performance.  The Board also noted that one of your NJPs occurred well before your head injury and was not potentially attributable to any mental health conditions.  Moreover, the Board determined that the AO rebuttal matters you submitted for consideration did not provide new or materially different evidence affecting your petition.  The Board concluded that there was no additional objective evidence presented to indicate you experienced any loss of consciousness or altered sensorium during or following the 23 November 1978 incident or that you exhibited any residual TBI symptoms.  Accordingly, the Board determined that there was no impropriety or inequity in your discharge, and even under the liberal consideration standard for mental health conditions, the Board concluded that your serious misconduct and disregard for good order and discipline clearly merited your receipt of a BCD. 
 
The Board also noted that, although it cannot set aside a conviction, it might grant clemency in the form of changing a characterization of discharge, even one awarded by a court-martial.  However, the Board concluded that despite your contentions this is not a case warranting any clemency.  You were properly convicted at a SPCM of serious misconduct, and the Board did not find any evidence of an error or injustice in this application that warrants upgrading your BCD.  The Board carefully considered any matters submitted regarding your post-service conduct and accomplishments, however, even in light of the Wilkie Memo and reviewing the record holistically, the Board still concluded that given the totality of the circumstances 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,