Dear This is in reference to your application for correction of your naval record pursuant to Section 1552 of Title 10, United States Code. After careful and conscientious consideration of relevant portions of your naval record and your application, the Board for Correction of Naval Records (Board) found the evidence submitted insufficient to establish the existence of probable material error or injustice. Consequently, your application has been denied. Although you did not file your application in a timely manner, the statute of limitation was waived in accordance with the 25 August 2017 guidance from the Office of the Under Secretary of Defense for Personnel and Readiness (Kurta Memo). A three-member panel of the Board, sitting in executive session, considered your application on 12 February 2021. The names and votes of the panel members 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) from a qualified mental health provider, and applicable statutes, regulations, and policies, to include the Kurta Memo, the 3 September 2014 guidance from the Secretary of Defense regarding discharge upgrade requests by Veterans claiming post-traumatic stress disorder (PTSD) (Hagel Memo), and the 25 July 2018 guidance from the Under Secretary of Defense for Personnel and Readiness regarding equity, injustice, or clemency determinations (Wilkie Memo). You enlisted in the Navy on 24 October 1990. Your pre-enlistment physical examination and medical history both noted no psychiatric or neurologic conditions or symptoms. On 13 December 1991 you were issued a “Page 13” retention warning (Page 13) for unlawfully possessing two military identification cards. The Page 13 expressly warned you that any further deficiencies in your performance and/or conduct may result in processing for administrative separation. However, on 9 January 1992 you received non-judicial punishment (NJP) for unauthorized absence (UA). On 14 January 1992 you were issued a Page 13 documenting your NJP. The Page 13 contained a similar retention warning as your first Page 13. On 26 June 1992 you received NJP for UA and missing ship’s movement. On 14 July 1992 you were issued a Page 13 documenting your NJP. The Page 13 contained a similar retention warning as previous Page 13 warnings. On 15 December 1992 you received NJP for UA lasting eleven days and missing ship’s movement. On 21 December 1992 you were convicted at a Special Court-Martial (SPCM) of UA lasting forty-two days, missing ship’s movement, and two specifications of the wrongful use of a controlled substance. You received as punishment confinement for forty-two days, forfeitures of pay for two months, a reduction in rank to the lowest enlisted paygrade (E-1), and a discharge from the Navy with a Bad Conduct Discharge (BCD). Upon the completion of appellate review in your case, on 21 September 1993 you were discharged from the Navy with a BCD and assigned an RE-4 reentry code. On 27 April 2007 the Naval Discharge Review Board determined that your discharge was proper as issued and that no change was warranted. As part of the Board review process, the BCNR Physician Advisor who is a medical doctor and Fellow of the American Psychiatric Association (MD), reviewed your contentions and the available records and issued an AO dated 30 December 2020. The MD observed that your in-service records did not contain direct evidence of diagnosed PTSD or psychological or behavioral changes indicating TBI/PTSD. The MD did note that your records contained several in-service psychiatric evaluations and one hospitalization with subsequent diagnoses of adjustment disorder at a civilian facility and alcohol dependence. However, the MD observed that throughout your mental health evaluations, you did not report any history of combat or combat-related traumatic incidents. The MD noted that you did not provide any evidence of in-service or post-discharge PTSD diagnoses, any exhibiting of in-service symptoms indicative of early PTSD, or any nexus between a mental health condition and your misconduct. The MD determined your description of your in-service mental health history was not supported by the available records and brought into question the credibility of your claims, including your contention of 2½ months of psychiatric hospitalization. Moreover, the MD determined that your in-service PTSD contention was not supported by available military records. The MD concluded by opining that there was insufficient objective evidence you incurred PTSD as a result of your military service or that your misconduct may be mitigated by PTSD. The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in your case in accordance with the Kurta, Hagel, and Wilkie Memos. These included, but were not limited to: (a) a discharge upgrade to other than honorable or general would more accurately reflect your UA situation, (b) you are still receiving medical help for your mental condition, and (c) you were treated for a mental issue after returning from the Gulf War and spent 2½ months at Naval Hospital lock-down unit. However, given the totality of the circumstances, the Board determined that your request does not merit relief. In accordance with the Kurta, Hagel, and Wilkie Memos, the Board gave liberal and special consideration to your record of service, and your contentions about any 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 convincing evidence that you suffered from any type of diagnosed mental health condition 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. As a result, the Board concurred with the AO findings and concluded that your misconduct was not due to mental health-related conditions or symptoms. The Board determined, contrary to your contentions, that your available records do not indicate you ever spent 2½ months in a lock-down psychiatric unit. The Board also determined that the evidence of record did not demonstrate that you were not mentally responsible for your conduct or that you should otherwise not be held accountable for your actions. The Board also noted that there is no provision of federal law or in Navy/Marine Corps regulations that allows for a discharge to be automatically upgraded after a specified number of months or years. Additionally, absent a material error or injustice, the Board generally will not summarily upgrade a discharge solely for the purpose of facilitating VA benefits, or enhancing educational or employment opportunities. Accordingly, the Board determined that there was no impropriety or inequity in your discharge, and even under the liberal consideration standard, the Board concluded that your serious misconduct and total disregard for good order and discipline clearly merited your receipt of a BCD. The Board also noted that, although it cannot set aside a conviction, it might grant clemency in the form of changing a characterization of discharge, even one awarded by a court-martial. However, the Board concluded that despite your contentions this is not a case warranting any clemency. You were properly convicted at a SPCM of serious misconduct and the Board did not find any evidence of an error or injustice in this application that warrants upgrading your BCD. The Board carefully considered any matters submitted regarding your post-service conduct and accomplishments. However, even in light of the Wilkie Memo and reviewing the record holistically, the Board still concluded that given the totality of the circumstances your request does not merit relief. You are entitled to have the Board reconsider its decision upon 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. Sincerely, 2/26/2021 Executive Director