Docket No: 10176-18/ 1805-14 Ref: Signature Date Dear : This letter is in reference to your reconsideration request received on 9 October 2018. You previously petitioned the Board for Correction of Naval Records (Board) and were advised that your application had been disapproved. Your case was reconsidered in accordance with Board procedures that conform to Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004). 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. Because your application was submitted with new matters not previously considered, the Board found it in the interest of justice to review your most recent application. In this regard, your current request was carefully examined by a three-member panel of the Board, sitting in executive session, on 23 January 2020. The names and votes of the members of the panel will be furnished upon request. 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, a 17 June 2019 advisory opinion (AO), and your 24 July 2019 rebuttal thereto. You enlisted in the Navy on 1 October 1990. One month later, on 9 November 1990, you began a period of unauthorized absence (UA) from your recruit training that ended on 31 May 1991. As a result, your command indicated it intended prefer charges against you at special court-martial (SPCM) for desertion, and you indicated your intent to request discharge for the good of the service (GOS) to avoid such a trial. As part of the GOS process, you were medically screened by a clinical psychologist on or about 7 June 1991, who determined that psychiatric evaluation was not necessary. That same day, charges were preferred against you at SPCM for desertion. On 19 June 1991, you submitted a written request for a GOS discharge to avoid trial by court-martial for desertion. As part of this request, you conferred with a qualified military lawyer and admitted your guilt to the lesser included offense under desertion of UA. You were further advised of your rights, stated you understood your rights, that you were completely satisfied with the counsel you received, and warned of the probable adverse consequences of accepting such a discharge. Your request was granted, and your commanding officer was directed to discharge you from the naval service with an other than honorable (OTH) characterization of service for the good of the service. As a result of this action, you were spared the stigma of a court-martial conviction, as well as the potential penalties of a punitive discharge. On 28 June 1991, pursuant to your request, you were so discharged. Your request for an upgrade to your characterization of service was reviewed in consideration of your contention that you suffered from post-traumatic stress disorder (PTSD) while in the Navy, and that your mental condition was not considered when you were discharged. Your request was fully and carefully considered by the Board in light of the Secretary of Defense’s 3 September 2014 memorandum, “Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requested by Veterans Claiming Post Traumatic Stress Disorder,” the 25 August 2017 memorandum, “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,” and the 25 July 2018 memorandum, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations.” As part of the Board’s review, a Navy mental health professional reviewed your request and provided the Board with an AO on 17 June 2019. The AO stated that you have been diagnosed with PTSD but that the evidence to attribute the PTSD diagnosis to military service is not clear. The AO explained that you reported experiencing significant child abuse prior to entering the military, and that it seems reasonable to attribute your PTSD to that childhood abuse, and not your military service. The AO noted that other of your providers opine that you incurred PTSD upon learning of your brother’s suicide shortly after returning from the UA. The AO stated that, if the latter providers are correct, your PTSD would be attributed to military service but your misconduct would pre-date the PTSD and would not be attributed to PTSD. Based on the evidence, the AO concluded there was insufficient evidence to attribute your PTSD to military service and/or to attribute your misconduct to PTSD. The AO was provided to you on 17 June 2019, and, through counsel, you submitted a rebuttal response on 24 July 2019 which was considered by the Board. A personality disorder describes lifelong characterological traits and, by definition, is a mental health condition existing prior to entering the military. There is insufficient evidence regarding the onset of your remaining mental health conditions to opine whether they existed prior to entering the military. It is possible that were experiencing a mood disorder or substance use disorder prior to entering the Navy. But, there is insufficient evidence that your brief military service of approximately one month exacerbated any pre-existing mental health diagnosis. There is also insufficient evidence that your decision to leave on unauthorized absence (UA), and commit a crime while UA, should be attributed to a mental health condition incurred by military service. The Board carefully reviewed your application, weighed all potentially mitigating factors, and considered your contention you suffered from PTSD and other mental health conditions, while in the Navy, and that your mental condition was not considered when you were discharged. Specifically, the Board considered your contention that you suffered from anxiety and nightmares since childhood and the childhood trauma you experienced was triggered upon reading your brother’s suicide letter. You further contend that you immediately left because you believed returning home was the only way to save your brother’s life. You contend your heartbreak for your brother’s situation, having special needs and being abused by your father, led you to remain in an UA status until you felt your brother was mentally strong enough. The Board further considered your contention that upon surrendering from the UA and returning to boot camp, your brother ended his life. Forced to appear before a tribunal to defend your UA, you contend you “could not mentally function” and were “unable to explain the circumstances” that led to your UA, fully articulate the symptoms you were experiencing, or request psychiatric assistance. You contend that you knew you could not remain in the Navy given your condition so you “agreed to receive an other than honorable characterization of service in lieu of trial by court-martial.” The Board also considered your contention that your request for an upgrade to your discharge warrants approval “under the liberal consideration and special consideration standards mandated by the Hagel Memo” because your mental health condition excuses or mitigates your misconduct under the 2017 clarifying memo. Additionally, the Board considered your contention that an upgrade should be granted on justice and equity grounds “based on the totality of your life and circumstances.” You specifically contend that the Board has used its power to upgrade even when the discharge was deemed appropriate for the circumstances at the time. The Board considered your contention that you made a mistake when you were 18 years old, and despite your “noble intention for leaving to save your brother’s life,” you have dealt with the negative effects of your decision every day for the past 27 years. Additionally, the Board considered the contentions from your rebuttal of 24 July 2019. In your rebuttal, you contend there is no requirement that the condition be only PTSD but that the condition may be any mental health condition nor is there a requirement the condition be caused by military service. You further contend the evidence satisfies the questions presented by the Kurta memo. Further, you contend you have been consistently diagnosed with mental health conditions and the conditions existed during military service and at the time of your misconduct. Lastly, the Board considered the timeline you provided, specifically that you began experiencing mental health symptoms beginning in boot camp as indicated in a dental questionnaire which pre-dates the UA. The Board, however, concurred with the AO and determined there is insufficient evidence to support a finding that PTSD or a mental health condition contributed to or mitigated your misconduct. Nor was there sufficient evidence that any pre-service mental health condition was aggravated by your brief military service. The Board concluded your decision to leave boot camp was a rational decision, as was your decision to remain in an UA status for more than six months. Even under the liberal consideration standard, the Board found that your extended UA warranted an OTH characterization of service. The Board discerned no procedural defect, probable material error, or injustice in your discharge. The Board noted that, in requesting a discharge for the good of the service in lieu of trial by court-martial, you consulted with a military defense counsel and admitted that you were guilty of the misconduct alleged. Finally, the Board noted that your mitigating circumstances were taken into account at the time of your decision, as you received a benefit from being allowed to separate from you naval service obligation with an OTH characterization of service, instead of being tried by court-martial and risking punishment and more adverse consequences. Accordingly, under the totality of the circumstances, the Board in its review discerned no probable material error or injustice warranting corrective action. It is regretted that the circumstances of your reconsideration petition are such that favorable action cannot be taken. You are entitled to have the Board reconsider its decision upon the 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 the absence of new matters for reconsideration, the decision of the Board is final, and your only recourse would be to seek relief, at no cost to the Board, from a court of appropriate jurisdiction. 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.