DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 

Docket No: 1870-21 
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 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 23 August 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). Additionally, the Board considered a 26 May 2021 advisory opinion (AO) furnished by qualified mental health provider.
 
You enlisted in the Navy and commenced a period of active duty on 22 June 1995. On 30 November 1996, you received nonjudicial punishment for failing to go to your place of duty. On 14 May 1997, you received nonjudicial punishment again for failing to go to your appointed place of duty and for making a false official statement, and you received a written warning for these offenses. On 30 July 1997, you received nonjudicial punishment again for failing to go to your place of duty, and you received another written warning for this offense. On 12 September 1997, you received nonjudicial punishment for unauthorized absence, disobeying a lawful order, and assault. On 22 September 1997, you were notified of the initiation of administrative separation processing and your rights in connection therewith. You waived your right to an JCB administrative board.
 
On 6 November 1997, your commanding officer transmitted to the separation authority his recommendation that you be discharged with an other than honorable characterization of service. On 21 November 1997, you were so discharged. In 2008, the Naval Discharge Review Board (NDRB) reviewed your application for review of your discharge, and the available records reflect that the NDRB denied your request for an upgrade of your discharge characterization.
 
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 your discharge was inequitable because you did not receive treatment for your mental health condition while you were on active duty, that you were subjected to discrimination and unfair treatment by your command, and that you suffered trauma while on active duty, including witnessing fellow service members commit suicide by jumping overboard and your friend committing suicide by crashing his airplane. You set forth these facts and arguments in your brief that you submitted with your petition. You explained that, based on the stressors you described, you self-medicated by using alcohol, which led to your misconduct and eventual discharge under other than honorable conditions. 

In connection with your assertion of a mental health condition, the Board reviewed the AO, which was considered mostly favorable to your request. The AO explained that your service record was incomplete and that your health, dental, and field records were missing. The AO further explained that: 

Records available revealed his misconduct began in November of 1996 and included unauthorized absences (UA) (ranging from a few hours to a few days), false official statement, and assault. Petitioner described his in-service trauma of witnessing fellow sailors commit suicide and specifically one of his friends in August of 1996. He explained his UA’s were the result of his self-medicating with alcohol. He stated the assault was the result of another service member taking Petitioner’s property. Petitioner provide documentation from the VA that confirmed substance use disorders, as well as his PTSD diagnosis linked to his military service. It is not uncommon for service members to resort to maladaptive coping skills (i.e., overuse of alcohol), especially if they have been drinking on a routine basis since eighth grade. Petitioner exhibited some behaviors indicative of a mental health condition that would mitigate some, but not all of his misconduct. For example, his assault would not be attributed to a mental health condition, as he explained he ‘got in a fight with another soldier who took my personal belongings.’ 

The AO concluded that the “the available objective evidence indicated Petitioner exhibited behaviors associated with a mental health condition during his military service and some of his misconduct may be mitigated by his mental health condition.” 
Based upon its review, the Board concluded the potentially mitigating factors that you raised were insufficient to warrant relief. The Board determined that the persistence of your misconduct despite being issued two written warnings, as well as the variety of your misconduct,  supported your discharge and characterization of service. The Board noted that the AO found that some of your misconduct may be mitigated by your mental health condition. Thus, to the extent the Board did not disagree with the AO, the Board determined that even if some of your misconduct were mitigated, the remaining misconduct, such as assaulting a shipmate and making a false official statement, support your discharge and characterization of service. Thus, the Board determined that there was no error or injustice in the assignment of your discharge characterization and found 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, 
9/13/2021