DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 11686-19 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 20 February 1990. Your pre-enlistment medical history and physical examination on 18 January 1990 noted no psychiatric or neurologic conditions or symptoms. On 3 August 1990 you received non-judicial punishment (NJP) for three specifications of unauthorized absence (UA). The same day you were issued a “Page 13” warning stating any further UCMJ violations or misconduct of a discreditable nature with military authorities could result in processing for administrative separation under other than honorable (OTH) conditions. However, on 27 August 1990 you received NJP for UA. On 27 September 1990 you received NJP for two specifications of failing to obey a lawful order. On 9 January 1991 were convicted at a Summary Court-Martial of seven separate specifications of UA and assault for grabbing a female service member’s buttocks. On 14 February 1991 you were notified that you were being processed for an administrative discharge by reason of misconduct due to a pattern of misconduct, and misconduct due to the commission of a serious offense. You elected to exercise your rights to consult with counsel and to present your case to an administrative separation board (Adsep Board). On 12 March 1991 an Adsep Board convened in your case. At the Adsep Board you were represented by a Navy Judge Advocate. Unfortunately, you failed to show up at the time prescribed for your Adsep Board and thus were in a UA status when the Adsep Board convened. The record reflected that the Adsep Board was delayed for approximately one full hour to allow you to attend the hearing before proceeding in your absence. Following the presentation of evidence and witness testimony, the Adsep Board members unanimously determined that you the committed misconduct as charged. Subsequent to the unanimous misconduct finding, the Adsep Board members recommended that you be separated from the naval service with an OTH characterization of service. Ultimately, on 11 April 1991 you were discharged from the Navy for misconduct with an OTH characterization of service and assigned an RE-4 reentry code. On 6 March 2017 the Board denied your initial petition for relief. As part of the Board review process, the BCNR Physician Advisor who is a licensed clinical psychologist (Ph.D.), reviewed your contentions and the available records and issued an AO dated 2 February 2021. The Ph.D. noted that although you provided documentation of a 2015 mental health diagnosis with an opinion that your in-service misconduct was connected to your mental health condition, the Ph.D. concluded by opining that the preponderance of the available evidence failed to establish 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 your contentions that: (a) it was an error to discharge you without proper counseling and understanding of your medical condition; (b) you were suffering from undiagnosed bipolar with schizophrenic affective disorder at the time of your discharge; (c) your illness was aggravated in the Navy, which repeatedly led you to request professional help, (d) due to your illness you were unable to attend your own Adsep Board; (e) you received ineffective assistance of counsel at your Adsep Board; (f) your misconduct was a direct symptom of your undiagnosed mental illness that existed at the time you entered the service and was aggravated during his service; (g) prior to joining the Navy you were already suffering from signs of mental illness such as sleep disturbance, alcohol abuse, inappropriate anger and interpersonal conflicts and these symptoms only intensified under the stress of service; (h) you became an unfortunate victim of your own undiagnosed mental illness and suffered the rejection of your pleas for help by your superiors; and (i) your mental illness remained undiagnosed and you were mentally unable to complete the duties that you committed to fulfilling with the United States Navy. 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. Moreover, the Board determined that even if your misconduct was somehow attributable to any mental health conditions, the severity of your misconduct outweighed any and all mitigation offered by such mental health conditions. The Board determined the record clearly reflected that your misconduct was intentional and demonstrated you were unfit for further service. 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, the Board determined that you had a legal, moral and ethical obligation to remain truthful on your enlistment paperwork. Had you properly and fully disclosed your pre-service mental health issues and/or conditions, you would have likely been disqualified from enlisting. The Board also noted that you admitted in your personal statement accompanying your petition that the real reason you were in a UA status at the time of your Adsep Board was because you overslept after a night of drinking alcohol. The Board noted there is no convincing evidence in the record to support your contention that you did not receive adequate representation or experienced ineffective assistance of counsel (IAC). The Board concluded that you failed to meet your burden to show that: (a) your defense counsel’s performance was deficient and fell below an objective standard of reasonableness; and (b) but for the alleged deficiencies, that there was a reasonable probability of a more favorable result. Accordingly, the Board concluded that no IAC occurred. The Board further 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. The Board did not believe that your record was otherwise so meritorious as to deserve a discharge upgrade. The Board determined that characterization under OTH conditions 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. Lastly, 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. 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 pattern of serious misconduct clearly 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. Sincerely,