Docket No: 8537-17
MAY 3 2019

Dear

This is in reference to your application for correction of your naval record pursuant to the provisions of Title 10, 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 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 for Correction of Naval Records, sitting in executive session, considered your application on 29 January 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, an advisory opinion (AO) dated 24 November 2017, and applicable statutes, regulations, and policies. 

You reenlisted in the Navy on 11 February 1972.  According to the information in the record, on 20 April 1976, you received non-judicial punishment (NJP) for an unauthorized absence (UA) lasting 36 days.  On 28 April 1976, you began another period of UA, lasting 126 days, until 1 September 1976.  Administrative discharge processing was initiated.  Although your record does not contain all of the documentation relating to your discharge, it does reflect that you waived your rights and did not object to your discharge.  You were discharged on 15 October 1976 with an other than honorable characterization of service.  As a result, you were spared the stigma of a court-martial conviction for your lengthy UA, as well as the potential penalties of such a punitive discharge.  

The Board relies on a presumption of regularity to support the official actions of public officers, and, in the absence of substantial evidence to rebut the presumption, to include evidence submitted by a petitioner, the Board presumes that you were properly discharged from the Navy.

Your contention that you suffered from post-traumatic stress disorder (PTSD) 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. 
 
A qualified Navy mental health professional also reviewed your request and provided the Board with an AO dated 24 November 2017 regarding your assertion that you suffered from PTSD.  The AO noted your documentation from the Department of Veterans Affairs (DVA), which included a diagnosis of PTSD.  However, the AO also noted that there is no in-service medical documentation that supports a diagnosis of PTSD, and that no other documentation is available from the DVA.  The AO noted further that you did not provide any details regarding purported traumatic events that could have led to PTSD, and that there is no post-service medical documentation from 1976 to 2016.  The AO thus concluded that there is insufficient evidence to support your contention that you had PTSD at the time of your service that contributed to your misconduct.
   
The Board carefully weighed all potentially mitigating factors, such as the AO, your service-connected disability from the DVA, your post-service diagnosis of PTSD, and your desire to upgrade your character of service, as well as your contention that PTSD contributed to your misconduct.  The Board noted that you failed to provide a rebuttal to the AO supporting your claim of PTSD.  The Board found no nexus between PTSD and your misconduct.  The Board also concurred with the AO that there was insufficient evidence to support your contention that you had service-connected PTSD that contributed to your misconduct.  Even under the liberal consideration standard, the Board found that the seriousness of your misconduct, as evidenced by your NJP and 126-day UA, merited your OTH characterization of service. 

In regard to your contention that you believe the record to be unjust due to your service-connected disability, the Board noted that the DVA only has the authority to determine your eligibility for DVA benefits.  While the Board considered the DVA’s determination, it also noted that the DVA does not have the authority or ability to change your naval record, and it determined that such evidence was not sufficient to establish that you suffered from PTSD during your service that contributed to your misconduct and that excused or mitigated such misconduct.

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 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