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


Docket No: 109-17 

JUN 1 2018 


This is in reference to your application for correction of your naval record pursuant to the provisions 
oftitle 1O ofthe United States Code, section 1552. After careful and conscientious consideration of 
the entire record, the Board found the evidence submitted was insufficient to establish the existence 
ofprobable 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 threemember 
panel ofthe Board for Correction of Naval Records, sitting in executive session, considered 
your application on 18 April 2018. The names and votes of the members of the panel will be 
furnished upon request. Your allegations oferror and injustice were reviewed in accordance with 
administrative regulations and procedures applicable to the proceedings ofthis 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, and the mental health Advisory Opinion (AO), dated 26 January 2018. 

You reenlisted in the Navy on 31 July 1985 after nearly four years of prior service. On 22 December 
1988, you were convicted by civil court of aggravated sexual battery/child abuse. The sentence 
imposed was 20 years in the      State Penitentiary. The sentence was suspended and you were 
placed on supervised probation for life. Subsequently, you were notified ofpending administrative 
separation by reason of misconduct due to commission of a serious offense at which time you waived 
your procedural rights to consult with legal counsel and to present your case to an administrative 
discharge board (ADB). Your commanding officer recommended discharge under other than 
honorable (OTH) conditions by reason of misconduct due to commission ofa serious offense. The 
discharge authority approved this recommendation and directed separation under other than 
honorable conditions by reason ofmisconduct, and on 18 January 1989, you were discharged. 

You request an upgrade to your discharge characterization on the basis that you were suffering from 
a mental health condition that you incurred during 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 of 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 
of25 August 2017. 

A qualified mental health professional also reviewed your request for correction of your record and 
provided the Board with an AO dated 26 January 2018, regarding your assertion of suffering from a 
mental health condition. The AO noted that there arc no treatment records either in-service or postservice 
regarding your mental health. The AO concluded that "based on the preponderance of 
evidence, it is my considered medical opinion that there is insufficient evidence to support Mr. 
         contention that he suffered from a mental illness at the time of the service." 

The Board carefully weighed all potentially mitigating factors, including the AO and your assertion 
ofa mental health condition as a reason for your misconduct. The Board concluded these factors 
were not sufficient to warrant relief in your case because of the seriousness of your misconduct that 
resulted in a civil conviction. The Board concurred with the AO statement that there is insufficient 
evidence to support the claim of a mental health condition and concluded the information in your 
service record and statements you provided was not enough to substantiate your claim of a mental 
health condition at the time of your misconduct. The Board in its review discerned no impropriety or 
inequity in the discharge. 

The Board believes that you are eligible for veterans' benefits which accrued during your prior 
period ofservice. However, your eligibility is a matter under the cognizance of the Department of 
Veteran Affairs (DVA). In this regard, you should contact the nearest DVA office concerning your 
rights, specifically, whether or not you are eligible for benefits based on that period of service. 

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 ofregularity 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. 


Executive Director