DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 2226-21 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 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. A three-member panel of the Board, sitting in executive session, considered your application on 20 September 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, applicable statutes, regulations, and policies, to include 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 the advisory opinion (AO) furnished by qualified mental health provider dated 16 August 2021, which was previously provided to you. Although you were afforded an opportunity to submit a rebuttal, you did not do so. You enlisted in the U. S. Navy and began a period of active duty on 2 October 1990. On 11 March 1994, you received a civil conviction for corporal injury of your spouse and were sentenced to five (5) days of public service, 3 (three) years of summary probation, and to enroll in a family advocacy program. On 23 July 1994, you violated your probation by injuring your wife during an argument. You then fled the scene and were eventually apprehended by Police. On 23 August 1994, your probation was revoked and you were sentenced to 180 days in jail. As a result of your civilian conviction you were subsequently processed to be administratively separated. On 31 August 1994, you were notified that you were being processed for misconduct for your civil conviction and for commission of a serious offense. During this process, you waived your right to consult with counsel and to have your case heard at an administrative discharge board. In September 1994, your commanding officer (CO) recommended you be separated with an other than honorable (OTH) characterization of service by reason of your civil conviction and commission of a serious offense. In his recommendation letter, your CO noted you failed to attend at least one of the counseling sessions mandated in your sentence. In September 1994, the discharge authority agreed with your CO and directed you be separated with an OTH by reason of commission of a serious office. On 30 September 1994, you were discharged. Your request was fully and carefully considered by the Board in light of the Secretary of Defense’s Memorandum, “Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requested by Veterans Claiming Post Traumatic Stress Disorder” of 3 September 2014 and the "Clarifying Guidance to Military Discharge Review Board and Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modification of their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment" memorandum of 25 August 2017. As part of the Board’s review, a qualified mental health professional reviewed your request for correction to your record and provided the Board with an AO regarding your assertion that you are dealing with Post-Traumatic Stress Disorder (PTSD) and this diagnosis might have mitigated the misconduct that led to you receiving an OTH. The AO noted your assertions that you contended you suffered from PTSD at the time of your civil convictions stemming from your being robbed, beaten, and stabbed overseas. The AO further noted you assert you were later shot and robbed as soon as you returned from the war. The AO opined the objective evidence failed to establish you were diagnosed with PTSD or suffered from PTSD at the time of your military service, or that your in-service misconduct could be attributed to PTSD or other mental health conditions. 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 aforementioned contentions. The Board noted, aside from your statement, service record documents, court documents and DD 214, you did not submit character letters or post-service documents to be considered for clemency purposes. Based upon this review, the Board concluded these potentially mitigating factors were insufficient to warrant relief. Specifically, the Board determined your misconduct, as evidenced by your civil conviction, outweighed these mitigating factors. Additionally, the Board concurred with the AO. 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, Executive Director