Docket No: 11457-19
Ref: Signature Date                         
   
 
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 limitations 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 24 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, 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).  The Board also considered an advisory opinion (AO) from a qualified mental health professional dated 1 February 2021, which was previously provided to you.   
 
You entered a period of active duty in the Navy on 21 March 1990.  You were convicted by Summary Court-Martial (SCM) on 22 October 1990 for a 54 day unauthorized absence (UA) and for stealing $80 from another Sailor.  You received notification of administrative separation processing by reason of misconduct due to commission of a serious offense, exercised your right to consult with counsel and waived an administrative board.  Your commanding officer recommended you receive an Other Than Honorable (OTH) characterization of service and you were so discharged on 4 January 1991.   
 
You petitioned the Naval Discharge Review Board (NDRB) on 30 January 2003 and previously petitioned this Board on 23 May 2012 and denied relief.  You contended then that your Navy lawyer told you your witness was participating in Desert Storm, the charges were dropped, and you opted to get out of the Navy due to the mental strain that occurred in a short period of time.  You also stated youth was a factor.   
 
In your current application you contend you were discharged without a court-martial, no one was tried, you are innocent, and your OTH should be upgraded as soon as possible.  You further contend you have been attending PTSD treatment at your local Department of Veterans Affairs (VA), your discharge has set you back in life, and you were 19 years old at the time and you are 50 now. 
 
Your current request was fully and carefully considered by the Board in light of the Hagel Memo and the Kurta Memo.  Additionally, a qualified mental health professional reviewed your request for correction to your record and provided the Board with an AO regarding your assertion that you were suffering from a mental health condition during your service.  As noted in the AO, the mental health professional opined that the preponderance of available objective evidence fails to establish that you were diagnosed with a mental health condition, suffered from a mental health condition at the time of your military service, or that your in service misconduct could be 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 Wilkie Memo.  These included, but were not limited to, your contentions noted above and desire to upgrade your discharge.  The Board also relied on the AO in making its determination and noted no civilian medical records were provided for review.  Additionally, your in-service records do not contain evidence of a diagnosis of a mental health condition or psychological/behavioral changes, which may have indicated a mental health condition.  Finally, the Board noted you did not provide any post-service documentation or advocacy letters in support of your request for an upgraded characterization of service.  Based upon this review, the Board concluded that these potentially mitigating factors were insufficient to warrant relief, and specifically, the Board determined that your misconduct outweighed these mitigating factors.  Accordingly, given the totality of the circumstances, the Board determined that 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,