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


RJO
Docket No. 10253-17

This is in reference to your application for correction of your naval record pursuant to the provisions of 10 USC 1552. Your case was reconsidered in accordance with procedures that conform to Lipsman v. Secretary of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004). You were previously denied relief by the Board on 27 February 2014, 26 October 2015, and 22 June 2017. After careful and conscientious consideration of the entire record, the Board found the evidence submitted was insufficient to establish the existence of probable material error or injustice.
Consequently, your application has been denied.

A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 18 October 2018. 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 and applicable statutes, regulations and policies. Additionally, the Board considered the advisory opinion contained in	of 13 Jun 18 and your response to the opinion.

The Board carefully considered your arguments that you deserve an upgrade to your characterization of service, change to your narrative reason for separation to disability, and placement on the disability retirement list.  You assert that you were suffering from mental illness that mitigates your misconduct and that you were unfit for continued naval service at the time of your discharge. Unfortunately, the Board disagreed with your rationale for relief. In making their findings, the Board affirmed their decision of 22 June 2017. First, they concluded that you were mentally responsible for your misconduct that formed the basis for your administrative separation. The Board found insufficient evidence to support a finding that you were not criminally responsible for your actions that led you to be placed in pretrial confinement and request an Other than Honorable separation in lieu of court-martial. Despite the fact you were diagnosed with a depressive disorder while in an unauthorized leave status, the fact you returned on your own to your command and were found physically qualified for confinementwas persuasive evidence that you were mentally competent and responsible for your misconduct. Based on this finding, along with evidence that you committed the misconduct, the Board found no error or injustice in the Navy’s decision to accept your request for an Other than Honorable separation in lieu of trial by court-martial. As pointed out in the last Board decision, the Board felt you benefited from the Navy’s decision to accept your request for separation in lieu of trial by avoiding a potential punitive discharge from the Navy. Second, since the Board determined you were properly administratively separated for misconduct that warranted an Other than Honorable characterization of service, they concluded you were not eligible for disability processing. Disability regulations directed misconduct processing to supersede disability processing.  Third, the Board considered whether you deserve an upgrade to your characterization of service based on the Under Secretary of the Defense guidance regarding liberal consideration of discharge upgrade requests involving servicemembers with diagnosed mental health conditions. The Board found that you had a diagnosed mental health condition at the time of your misconduct and liberally considered whether the condition excused, mitigate, or outweighed the Other than Honorable discharge you were issued.  
In the end, the Board concluded an upgrade was not merited based on the circumstances of your case despite the existence of your mental health condition. While the Board was sympathetic to your mental health condition and understood it likely was related to your history of alcohol abuse, they could not reach the conclusion that your significant misconduct was sufficiently justified or outweighed by the facts and circumstances of your case. The Board noted that your misconduct involved three specifications of unauthorized absence, two missing movements, an orders violation for underage consumption of alcohol, wrongful use of marijuana, and an incapacitation for duty charge. In the Board’s opinion, despite the apparent nexus that exists between your mental health condition and the misconduct, this conglomeration of misconduct was far too serious to overcome with the mitigation offered by your mental health condition or the circumstances of your case. Despite the mitigation associated with your mental health condition and the liberal consideration for an upgrade your condition deserves, the fact you could have earned a punitive discharge for more than half of the charges for which you were pending trial by court-martial was a prominent factor in the Board’s determination that your misconduct outweighed the mitigation offered by your mental health condition. As a result, the Board concluded that your Other than Honorable characterization of service was appropriate after applying the liberal consideration required by the Under Secretary of Defense guidance.

Additionally, while you were extremely critical of the command’s handling of your case, in the Board’s analysis and in their findings whether an upgrade was justified, they considered the fact that you left the command without authorization for three periods during a critical time when the command was attempting to assist you with your alcohol and performance issues. The Board felt this lessened your arguments of an injustice in your case. Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to your record.

Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to their understanding of the issue(s) involved. Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record.

It is regretted that the circumstances of your case are such that favorable action cannot be taken at this time.  You are entitled to have the Board reconsider its decision upon the submission of
new and material evidence. New evidence is evidence not previously 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