DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 

Docket No: 11511-19 
Ref: Signature Date 


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 5 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) furnished by 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 5 January 1987.  Your pre-enlistment medical history and physical examination noted no psychiatric or neurologic conditions or symptoms. On 19 October 1987 you received non-judicial punishment (NJP) for unauthorized absence.  On 29 October 1987 you were convicted at a Summary Court-Martial of unauthorized absence (UA) lasting 31 days.  On 1 December 1987 your command issued you a “Page 13” counseling sheet and retention warning (Page 13). The Page 13 expressly warned you that any further deficiencies in your performance and/or conduct could result in processing for administrative separation under other than honorable (OTH) conditions. However, on 23 December 1987 you again received NJP for UA, and on 29 April 1988 you received NJP for UA and insubordinate conduct.  On 21 June 1988 you were convicted at a Special Court-Martial of UA. 

On 11 August 1988 you were notified that you were being processed for an administrative separation by reason of misconduct due to a pattern of misconduct and the commission of a serious offense.  You expressly waived your rights to consult with counsel, submit a written statement, and to present your case to an administrative separation board. Ultimately, on 8 September 1988 you were discharged from the Navy with an OTH characterization of service and assigned an RE-4 reentry code. 

As part of the Board review process, the Board’s Physician Advisor who is a licensed clinical psychologist (Ph.D.), reviewed your contentions and the available records, and issued an AO dated 31 January 2021. The Ph.D. initially noted that your in-service records did not contain evidence of a mental health condition diagnosis or evidence of psychological/behavioral changes indicating any mental health condition. The Ph.D. noted that although you appear to suffer from a mental health condition diagnosed post-discharge, there was no evidence such condition was linked to your military service or mitigated your military misconduct. The Ph.D. concluded by opining that the evidence failed establish that you suffered from a service-connected mental health condition, or that your misconduct could be attributed to any 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 Kurta, Hagel, and Wilkie Memos. These included, but were not limited to: (a) your service record shows your instability, (b) if your mental health condition was caught sooner you “could have been a different kind of special” in the Navy, (c) you were not evil or malicious and had a hard time fitting in, and (d) all your life you have never been able to complete tasks because you lose interest after starting out great.  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 concluded that your misconduct was not due to mental health-related conditions or symptoms. 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 did not believe that your record was otherwise so meritorious as to deserve a discharge upgrade and determined that Sailors should receive no higher discharge characterization than is due. The Board also determined that characterization under OTH conditions is generally warranted for misconduct and is appropriate when the basis for separation is the commission of an act or acts constituting a significant departure from the conduct expected of a Sailor. 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. 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 merited your receipt of an OTH.

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.