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

Docket No: 4878-18        
Ref:  Signature Date 

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 that 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 19 August 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, as well as applicable statutes, regulations, and policies.  In addition, the Board considered the 13 May 2019 advisory opinion (AO) furnished by a Navy mental health professional.  On 18 March 2019, the Board wrote you requesting additional medical or clinical evidence from you in support of your claim, and received no response.  The AO was provided to you on 14 May 2019, and you were given 30 days in which to submit a response.  When you did not provide a response, your case was submitted to the Board for consideration.  

You enlisted in the Navy and began a period of active duty on 14 September 1971.  On 8 June 1972 and 24 July 1972, you received nonjudicial punishment (NJP) for disobeying a direct order and negligently failing to stay awake while standing watch. On 25 July 1972, you were assigned a mark of 2.6 in professional performance, military behavior, military appearance and adaptability.  The administrative remarks also noted that after each of your NJPs, your “general attitude, performance, appearance and behavior [had] deteriorated further until at [that] point [you were] approaching unsuitability,” and that you had become “less and less willing to perform assigned tasks.” On 7 August 1972, you were medically evaluated “because of a suicidal jesture [sic] which followed charge on the part of [your] wife that [you were] beating [your] 18 month son.”  You also disclosed to the psychiatrist that you believed “people have been ‘predudice [sic] against [you]’ because of the fact that [you had] been psychiatricly [sic] been hospitalized.”  The psychiatrist also noted that “according to [your] command,” you had “become habitual liar about [your] where abouts and activities, [had] reflected brinkmanship and shirking of duty and [were] continually in trouble with [your] squdron [sic] for missing muster and has even been UA (which squdron [sic] dropped in order to give [you] another chance).” At that time, you were diagnosed with an “Adjustment Reaction of Adult Life,” and “Immature Personality Manifested.”  The psychiatrist also opined that “[w]hile some of [your] current difficulties concerning the military may be secondary to [your] recent marital difficulties, it is more likly [sic] that both [your] marital difficulties and [your] level of adjustment to service life reflects a basic underlying immature personality structure.”  On 13 September 1972, you were notified of administrative action to discharge you from the naval service by reason of “unsuitability” due to your medical diagnoses.  You were advised of, and declined to exercise, your right to submit a statement in your own behalf.  Your case was forwarded to the separation authority with the recommendation from your commanding officer (CO) that stated “[c]onsiderable effort of the petty officers and officers of this command has been spent counseling [you], without any indication of success.” Your CO also stated that your “erratic behavior during the past four months has been the source of approximately eighty percent (80%) of this command’s legal problems.”  Your CO further stated that “[r]epeated efforts to give [you] a second chance have been without success,” and recommended that you be administratively separated from the Navy.  On 22 September 1972, an Enlisted Performance Evaluation Board found you unsuitable for further service and recommended that you be separated from the Navy.  On 27 September 1972, the separation authority directed that you be discharged, with a characterization of service warranted by your service record.  On 19 September 1972, you were discharged with a general (under honorable conditions) characterization of service. 

Characterization of service is based in part on conduct marks assigned on a periodic basis.  Your conduct average was 2.6.  At the time of your service, a conduct average of 3.0 was required to be considered for an honorable characterization of service. 

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 review process, a Navy mental health professional reviewed your request and provided the Board with an AO regarding your assertion that you were suffering from a mental health condition during your service. The AO noted, in part, that in your current request for review, you submitted a letter from the Department of Veterans Affairs (DVA) noting an 80% service-connected disability evaluation.  You submitted your compete DVA record from June 1997 to April 2019, which noted an “evolving clinical conceptualization,” most recently with “mental health diagnoses of schizoaffective disorder, bipolar type and personality disorder with antisocial/paranoid plus significant narcissistic traits.” The record contains your progress notes, including several examples of you expressing frustration with your medical care and misperceptions of your treatment.  The AO further noted that you have a diagnosis of schizoaffective disorder, bipolar type, that the DVA has determined can be attributed to your military service.  The AO further noted that you also have a diagnosis of a personality disorder that was diagnosed in-service, and remains a significant factor in your treatment.  The AO opined that there is insufficient information regarding your mental health symptoms to determine whether your in-service behavior should be attributed to your personality disorder or your diagnosis of schizoaffective disorder.  The AO further opined that it is likely that your behavior was being influenced, at least in part, by your emotional state.  The AO determined that, at this time, based on the preponderance of the evidence, there is evidence to attribute at least some of your misconduct to a mental health condition. 

The Board carefully weighed all potentially mitigating factors in your case, including your record of service, DVA records, and desire to upgrade your discharge.  The Board also consider your assertions that for reasons you consider discriminatory by the State of Illinois, “who are changing the [D]VA language to say that a Discharge (under honorable conditions) discharge is not the same as an honorable discharge,” therefore not qualifying you for DVA benefits through the State of      .  The Board concurred with the AO’s statement that there is evidence to attribute at least some of your misconduct to a mental health condition, but insufficient information regarding your mental health symptoms to determine whether your in-service behavior should be attributed to your personality disorder or your diagnosis of schizoaffective disorder.  Accordingly, the Board concluded that these factors and assertions were insufficient to warrant recharacterization of your discharge given your two NJPs, medical diagnosis, and failure to attain the required average in conduct.   

The Board notes that whether you are eligible for benefits based on your period of service is a matter under the cognizance of the DVA. If you have been denied benefits, you may appeal that denial under procedures established by the DVA and the State of    . 

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 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 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.  


10/23/2019