Docket No: 10271-17


Dear 

This letter 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 your application was not filed in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your application on its merits.  A three-member panel of the Board, sitting in executive session, considered your application on 
21 February 2019.  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.  The Board also considered the advisory opinions (AOs) furnished by a Navy mental health professional dated 9 July 2018, which was previously provided to you and enclosed, and 3 January 2019, which is also enclosed.
 
You reenlisted in the Navy and began a period of active duty on 1 October 1990.  On 19 February 1991, your Commanding Officer (CO) reported that you had been referred to the Family Advocacy Program (FAP) in June 1990 based upon a Naval Hospital Emergency Room Report.  The report documented an April 1990 injury suffered by your spouse from glass fragments of a broken car window after your attempt to stop her from driving away.  On 20 March 1991, an investigative report regarding a 15 March 1991 assault and larceny of personal funds stated, in part, that your estranged spouse reported that she was returning the family vehicle to you at the barracks when you became irate and assaulted her after she told you she wanted a final divorce.  She reported that you knocked her down, took her purse and money, your infant child, and fled the area in your shared car.  During the altercation your spouse also suffered a bite mark on her right hand requiring medical attention.  On 13 May 1991, you received nonjudicial punishment (NJP) for three specifications of assault and one specification of larceny.  Subsequently, administrative discharge action was initiated by reason of misconduct due to commission of a serious offense.  After being afforded all of your procedural rights, you elected to have your case heard before an administrative discharge board (ADB).

On 5 June 1991, your CO reported that you had contact with the FAP in early 1990.  As a result of that contact, you attended First Step, a treatment program for domestic violence. A second incident of substantiated spouse abuse occurred in November 1990.  Based upon your recidivism, the prior completion of your treatment program, and your failure to accept responsibility for your behavior, you were identified as a treatment failure, and were recommended for administrative separation.  On 25 June 1991, the ADB found that you had committed misconduct due to commission of a serious offense, and recommended that you be administratively separated from the Navy with an other than honorable (OTH) discharge.  On 10 July 1991, your CO forwarded your case to the separation authority, favorably endorsing the results of the ADB, and stated that despite extensive military and professional counseling, you were unable to control your anger in your relationship with your spouse.  Your CO determined that you had a pattern of assaulting your spouse for nearly two years, and your behavior could no longer be tolerated in the naval service.  On 25 July 1991, the separation authority directed that you receive an OTH discharge.  You received your OTH discharge on 8 August 1991.  
  
You request an upgrade of your characterization of service on the basis that you suffered from unrecognized post-traumatic stress disorder (PTSD) at the time of your military service.  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 Boards 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.

A Navy mental health professional provided the Board with an AO regarding your assertion that you suffered from PTSD during your service.  The AO notes, in part, that there is no documentation of the events that led to your discharge and unfavorable characterization of service, and that additional documentation was requested.  At that time, there was no evidence of PTSD or any other mental health diagnosis, and without further information, no determination of the relationship between your alleged mental health condition and your characterization of service could be made.  After further review, your ADB documentation was located, and a follow-up AO states, in part, that you provided no post-service treatment records with a mental health diagnosis or a diagnosis of PTSD, and provided no documentation from the Department of Veterans Affairs.  The AO determined that there is insufficient information at this time to attribute PTSD to your military service.  Similarly, there is no indication at this time that either your spousal abuse or your misconduct should be attributed to PTSD.
 
The Board carefully weighed all potentially mitigating factors, such as your record of service and desire to upgrade your discharge, as well as your assertions that you developed PTSD as a result of an experience while in-service, but was never diagnosed or treated for it, that you are 
currently being treated and receiving disability from the VA, and that you believe that if the PTSD had been recognized and treated earlier, your domestic violence would never have occurred.  The Board concluded these factors and assertions were not sufficient to warrant recharacterization of your discharge or being restored to paygrade E-4 given your misconduct, which resulted in your NJP and separation for commission of a serious offense.  Accordingly, the Board concurred with the updated AO that there is insufficient evidence to attribute your misconduct to PTSD.

It is regretted that the circumstances of your case are such that favorable action cannot be taken.  You are entitled to have the Board reconsider its decision upon submission of new matters.  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