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


Docket No. 2797-21 
Ref: Signature Date 

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 the 25 August 2017 guidance from 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 17 June 2021. The names and votes of the members of the panel 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 2018 Under Secretary of Defense Memo on Guidance to Military Discharge Review Boards and Boards for Correction of Military / Naval Records Regarding Equity, Injustice, or Clemency Determinations (Wilkie Memo). 

A review of your record shows that you entered active duty with the Navy Reserve in June 1988. Non-judicial punishment was imposed on you for unauthorized absence, disobeying orders, provoking words, and disrespect on 19 November 1988, 19 May 1989, and 3 May 1990.  During this time, you were also diagnosed with a personality disorder and treated multiple times after expressing suicidal ideations.  In January 1991, you requested a hardship reassignment that was ultimately denied the same month.  This led to you final non-judicial punishment on 27 February 1991 for unauthorized absence, disrespect, assault, and false official statement.  As a result of your misconduct, you were notified of administrative separation processing for commission of a serious offense.  However, you subsequently commenced another period of unauthorized absence while checking yourself into a civilian medical facility for anxiety.  On 6 March 1991, your command requested to discharge you in abstentia based on your unauthorized absence.  Your separation physical noted that you suffered from a borderline personality disorder and should be separated immediately.  You were discharged on 14 March 1991 with an Other than Honorable characterization of service for commission of a serious offense. Post-discharge, the Naval Discharge Review Board denied your request for an upgrade to your characterization of service.  In addition, the Department of Veterans Affairs (VA) and the Board of Veterans Appeals has denied your request to be found “insane” at the time of your active duty.  

The Board carefully considered your arguments to upgrade your characterization of service to Honorable and change your narrative reason for separation to disability.  You argue that you were unfit for continued naval service and discharged in abstentia while in a mental health facility. You also mention that you were pending a hardship discharge when you were discharged for misconduct.  Unfortunately, the Board disagreed with your rationale for relief. 

In order to qualify for military disability benefits through the Disability Evaluation System with a finding of unfitness, a service member must be unable to perform the duties of their office, grade, rank or rating as a result of a qualifying disability condition.  Alternatively, a member may be found unfit if their disability represents a decided medical risk to the health or the member or to the welfare or safety of other members; or the member’s disability imposes unreasonable requirements on the military to maintain or protect the member. In your case, the Board determined the preponderance of the evidence does not support a finding that you met any of the criteria for unfitness at the time of your discharge. Despite your hospitalization at the time of your discharge, the Board relied on the 6 March 1991 separation physical that found no disability conditions to merit further treatment or to prevent your separation from active duty.  The examining medical provider specifically noted there was no evidence of psychosis and that you were not “grossly depressed.”  This was consistent with your prior medical treatment records associated with your suicidal ideation hospitalizations that concluded there was no evidence you suffered from any serious mental health conditions.  The Board noted that the Manual of the Medical Department Chapter 15-20 requires separation examinations and evaluations for active duty members and states “comprehensive evaluations are conducted for the purposes of ensuring that Service members have not developed any medical conditions while in receipt of base pay that might constitute a disability that should be processed by the Physical Evaluation Board (PEB) and to ensure Servicemembers are physically qualified for recall to additional periods of active duty.  Thus, the standards for being physically qualified to separate are the same as those being qualified to continue active duty Service … .” Since you were found physically qualified for separation at the time of your discharge, the Board relied on this medical evidence in determining that you were, more likely than not, fit for active duty at that time.  Finally, regardless of the existence of any disability conditions at the time of your discharge, the Board determined you were ineligible for disability processing based on your misconduct processing that resulted in an Other than Honorable characterization of service.  Department of Navy disability regulations directed misconduct processing to supersede disability processing.  Based on these factors, the Board concluded your narrative reason for separation remains appropriate. 

Regarding your request for an upgrade to your characterization of service to Honorable, the Board again concluded that relief was not supported by the preponderance of the evidence.  Despite considering the medical evidence you provided that suggests you should be considered “insane” for VA benefits purposes, the Board was not persuaded that clemency was warranted in your case.  The Board noted that you were examined multiple times by several different mental health professionals during your various treatments for suicidal ideations and other mental issues.  None of the mental health providers who examined you contemporaneously with your active duty service concluded that you suffered from a serious mental health condition.  The consensus appeared to be that you possessed a personality disorder that was affecting your behavior and that you were not actually suicidal despite your claims of ideations.  Based on these multiple contemporaneous treatment records that found no psychosis while you were on active duty, the Board was not persuaded by the medical opinions issued approximately 19 years after your discharge from the Navy that reached a vastly different conclusion on the seriousness of your mental health status in 1991.  Therefore, despite applying liberal consideration to determine whether an injustice exists in your case, the Board determined that the seriousness of your misconduct far outweighed the mitigation evidence associated with your mental health condition at the time.  The Board considered the fact you were punished four times with non-judicial punishment for offenses that ranged from violence and deceit to conduct that showed no regard for military authority, rules, or regulation.  The Board also took into consideration that you committed multiple offenses that qualified for a punitive discharge under the Uniform Code of Military Justice.  Similarly, the Board felt that clemency was not supported by the evidence when balancing the mitigation evidence you provided against the misconduct you committed.  Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to your record.  

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 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, 
6/18/2021 
Deputy Director