DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 10621-19 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 March 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 August 1977. On 30 November 1978 you underwent a medical evaluation to determined drug/alcohol dependency. The Medical Officer determined you were psychologically dependent on drugs and noted that you provided a history of nearly daily use of snorting heroin and cocaine. On 4 January 1979 you received non-judicial (NJP) for unauthorized absence (UA) lasting 25 days. On 30 April 1979 you commenced a period of UA that terminated after 255 days with your arrest in , on 10 January 1980. On 3 March 1980 you were convicted at a Special Court-Martial (SPCM) of your 255-day UA. You received as punishment 50 days of confinement, 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 25 March 1981 you were discharged from the Navy with a BCD and assigned an RE-4 reentry code. On 14 July 2015, this Board denied your initial petition for relief. As part of the review process, the Board’s Physician Advisor, who is also a medical doctor (MD) and a Fellow of the American Psychiatric Association, reviewed your contentions and the available records, and issued an AO dated 11 January 2021. The MD noted that your separation physical was positive for frequent or severe headaches, as well as depression or excessive worry. The MD also noted that per the civilian medical records provided, you have been diagnosed with lung cancer likely attributed to your smoking for forty-six years and your military service. However, the MD noted that there was no indication of a post-service mental health condition diagnosis. The MD determined that even though your records contain evidence of a possible depressive disorder, that any attempted explanation of your mental state during your prolonged UA or linkage to your in-service misconduct would be purely speculative. The MD concluded by opining that evidence failed to establish you were diagnosed with a mental health condition, suffered from a mental health condition on active duty, or that your misconduct was attributed to a mental health condition. The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in your case in accordance with the Hagel, Kurta, and Wilkie Memos. These included, but were not limited to: (a) your medical records show that you were depressed but you weren’t, (b) if you were depressed you should never have been released from the military, (c) you want your discharge changed because you are tired of being told you were discharged under dishonorable conditions when you only received a BCD, and (d) this discharge is preventing you from receiving benefits from the Department of Veterans Affairs (VA) and you have mesothelioma asbestos cancer from what you did on board the USS. However, given the totality of the circumstances, the Board determined that your request does not merit relief. In accordance with the Hagel, Kurta, 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 nexus between any mental health conditions and/or related symptoms and your misconduct, and determined that there was insufficient evidence to support the argument that any such mental health conditions mitigated the misconduct that formed the basis of your discharge. Even under the liberal consideration standard, the Board concluded that your misconduct was not due to mental health-related conditions or symptoms. The Board also noted that the evidence of record did not demonstrate that you were not mentally responsible for your conduct or that you should not be held accountable for your actions. 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 for mental health conditions, the Board concluded that your serious misconduct and 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 clemency. You left the Navy while you were still contractually obligated to serve and you went into a UA status for just over eight months without any legal justification or excuse. As a result, 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,