Docket No: 11067-19 
Ref: Signature Date 
 
 
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 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 15 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, and applicable statutes, regulations, and policies, including the Kurta 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).  The Board also requested and reviewed a 27 January 2021 Advisory Opinion (AO) from a mental health professional. 
 
You enlisted in the Navy on 19 September 1989.  On 15 November 1991, you received nonjudicial punishment for a period of unauthorized absence, assaulting a petty officer, and disobeying a petty officer.  You were marked as absent without authority from 7 September 1992 to 14 September 1992 (a period during which you contend you were hospitalized).  From 7 October 1992 to 26 October 1992, you were hospitalized at Naval Hospital, .  You were discharged from the Navy on 20 July 1993 due to your request for discharge in lieu of trial by court-martial.  Your characterization of service was designated as under other than honorable conditions.  As noted in your prior requests to this Board and to the Navy Discharge Review Board (NDRB), the paperwork related to the charges for which you sought the negotiated resolution of your court-martial are not available in your records.   

In 1995, you petitioned the NDRB and requested that your characterization of service be upgraded to honorable.  In that petition, you contended that the deaths of close family members caused your behavior problems, which mitigated your misconduct, that you were on an extension of your enlistment at the time of your discharge and completed your initial service obligation, that your service was otherwise honorable, and that you received inadequate counsel at the time of your separation.  On 12 July 1995, the NDRB denied your petition.  The NDRB found that you failed to submit substantial credible evidence to rebut the presumption of regularity, therefore, the NDRB presumed regularity in the conduct of governmental affairs.  The NDRB further found that, based on the misconduct that you committed, your discharge was appropriate, and that, with respect to your contention that you were on an extension at the time of your discharge, the NDRB explained that you would need to prove that to be the case.   
 
In 2011, you filed a petition with this Board, in which you contended that at the time of your discharge you were unfit due to a physical disability.  On 12 June 2012, this Board denied your petition, explaining that even assuming your unfitness, your discharge for misconduct as evidenced by your separation in lieu of court-martial, would have taken precedence over a disability-based discharge.   
 
With respect to your contention that at the time of your discharge you were under medical care for mental health reasons, and recent Department of Defense policy suggests liberal consideration for cases of post-traumatic stress disorder (PTSD) diagnoses, the Board sought the 27 January AO, which found as follows: 
 
Petitioner’s in-service records contain direct evidence of a diagnosis of PTSD, inpatient and outpatient psychiatric treatment, as well as placement on a six-month Limited Duty Medical Board for PTSD. However, the lack of service and medical records (or post discharge clinical records) detailing psychological symptoms and behavioral changes resulting from his PTSD, as well as information regarding his court-martial eligible misconduct that led to his request for separation in-lieu of court-martial with an OTH discharge, renders any determination of the linkage between his mental health condition and his misconduct entirely speculative regarding mitigation. Additional information, such as medical records or personal statements containing an explanation of the psychological/behavioral changes stemming from his PTSD diagnosis, the effect on his military service performance, and linkage to his military misconduct is required to render an opinion on possible mitigation of his misconduct. Should the Petitioner choose to submit additional clinical information, it will be reviewed in the context of his claims.  
 
The AO concluded, “at this time, based on the available evidence, it is my considered clinical opinion that Petitioner likely experienced PTSD during his military service.  However, the preponderance of available objective evidence fails to establish that Petitioner’s misconduct could be attributed to PTSD.”  Based upon its review, the Board concluded that the factors that you raised relating to your mental health insufficient to warrant relief.   
 
In your current petition, you have requested that your discharge be upgraded to honorable.  The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in your case in accordance with the Wilkie Memo.  You contended that you should have been separated at the end of the extension of your naval service and you were improperly involuntarily extended beyond your end of obligated service date for the purposes of administrative separation.  You did not provide evidence sufficient to demonstrate that you were involuntarily extended for the purposes of administrative separation.  The existing records reflect that the administrative separation was initiated by you, and it was based on court-martial charges brought against you.  There is no indicia that you were retained in service only to be subject to administrative separation processing.  And, as previously explained by the NDRB, the Board relies upon a presumption of regularity.  Further, in your petition, you cited MILPERSMAN 1910-106 (formerly codified at MILPERSMAN 3630650) as a “more appropriate” basis for separation.  That section, “Separation in Lieu of Trial by Court-Martial” provides (with emphasis added): 
 
e. Since separation in lieu of court-martial is based on the voluntary request of the Service member and is considered comparable to a plea bargain, it may be approved even after the expiration of active obligated service or expiration of service. 
 
Thus, the Board found your assertion you were involuntarily extended in order to be administratively processed in the face of your separation in lieu of trial by court-martial to be without merit.  In addition, the Board rejected your contention that MILPERSMAN 1910-208 was the appropriate separation authority, because, as noted, you were separated in lieu of trial by court-martial.  Similarly, related to another one of your contentions, the MILPERSMAN has been revise and renumbered, and section 3630650 has been renumbered to 1910-106. 
 
The Board also considered your contentions that important records are missing from your official military personnel file and you dispute reliance on the presumption of regularity and you did not have legal counsel relating to your separation in lieu of court-martial.  Your record does not contain any evidence contrary to the finding that you were separated in lieu of trial by court-martial.  Naval personnel are provided free counsel in making the determination whether to submit such a request, and you would have also been provided the opportunity to seek advice at the time of your request.  You have provided no evidence to the contrary. 
 
Based upon this review, the Board concluded these potentially mitigating factors were insufficient to warrant relief.  Specifically, the Board determined that your misconduct outweighed these mitigating factors.  Accordingly, given the totality of the circumstances, and having considered and addressing all of your contentions, the Board determined that your request does not merit relief.   
 
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. 
 
 Sincerely,