DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 4968-18 Dear This 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 threemember panel of the Board, sitting in executive session, considered your application on 8 August 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 11 December 2018 advisory opinion (AO) from a qualified mental health provider, as well as applicable statutes, regulations and policies. You enlisted in the Navy on 11 August 1988. On 14 March 1990, you received nonjudicial punishment (NJP) for two specifications of unauthorized absence (UA), willful disobedience of a petty officer, and for disrespect toward a petty officer. On 27 June 1990, you received NJP for UA and willful dereliction of duty. On 12 August 1991, you were convicted at a special court-martial of two specifications of UA lasting 50 days and 9 days, respectively. On 30 December 1991, you were notified that you were being processed for an administrative discharge by reason of misconduct due to the commission of a serious offense. You waived your right to consult with counsel and your right to present your case to an administrative separation board. Ultimately, on 13 January 1992, you were discharged from the Navy with an other than honorable (0TH) characterization of service. 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 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," of 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." A qualified military mental health professional reviewed your contentions and the available records, and provided the Board an AO on 11 December 2018. The AO noted that you did not provide any post-service treatment records for review aside from one letter from a VA psychologist who stated you have service-connected PTSD. The AO concluded that there is insufficient evidence to attribute your misconduct to PTSD without the benefit of treatment records describing your symptoms and their link to your misconduct. A copy of the AO was mailed to you on 12 December 2018, and you were provided 30 days in which to submit additional information to the Board. When the Board did not receive any additional information, your case was considered on the available evidence. The Board carefully weighed all potentially mitigating factors, such as the contentions outlined in your personal statement in support of your petition, and that you were suffering from PTSD at the time of your discharge. In accordance with the memos referenced above, the Board gave liberal and special consideration to your record of service, and your contentions about traumatic or stressful events you experienced and their possible adverse impact on your service. However, even under the liberal consideration standard, the Board concluded that there was no evidence that you suffered from any type of PTSD while on active duty, or that any such mental health condition was related to or mitigated the misconduct that formed the basis of your discharge. The Board also observed that you did not submit any additional clinical documentation or postservice treatment records to support your claim despite a request from Board on 12 December 2018 to provide such additional material. Accordingly, the Board determined that there was no material error or injustice in your discharge, and, even under the liberal consideration standard, the Board found that your serious misconduct and disregard for good order and discipline merited an 0TH discharge. Additionally, the Board reviewed your application under the recent guidance provided in the Under Secretary of Defense's memorandum of 25 July 2018 entitled, "Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations" (USD memo). The USD memo noted that "BCM/NRs have the authority to upgrade discharges or correct military records to ensure fundamental fairness." The USD memo sets clear standards and principles to guide boards in the application of their equitable relief authority, and further explains that boards shall consider a number of factors to determine whether to grant relief. However, even in light of the USD memo, the Board determined clemency was not warranted. 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 wiII 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 ofregularity attaches to aII 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.