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

Docket No: 1275-19 
Ref: Signature Date 


This letter is in reference to your reconsideration request of 11 January 2019.  You previously petitioned the Board for Correction of Naval Records (Board) and were advised that your application had been denied.  Your case was reconsidered in accordance with Board procedures that conform to Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004).  After careful and conscientious consideration of relevant portions of your naval record and your application, the Board found the evidence submitted was insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied. 

Although your application was not filed in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your application on its merits.  A three-member panel of the Board, sitting in executive session, considered your application on 7 April 2020.  The names and votes of the members of the panel 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.  The Board also considered the relevant Advisory Opinion (AO), your response to the AO, and the supplemental information you submitted to the Board, to include a detailed Personal Statement. 

You enlisted in the Navy and began a period of active duty service on 27 July 1998. In 2008/2009, you served in an Individual Augmentee (IA) billet in   .  Following completion of your IA, you were assigned to the      (    ).  You report that while onboard the , you were targeted, unduly counseled, subjected to sexual harassment, racism, and recrimination; your mental health began to deteriorate.  You were placed in a Limited Duty (LIMDU) status and transferred to underwent mental health treatment.  You were diagnosed with borderline personality disorder and major depression, but assert that you did not receive consistent treatment.  You cite multiple treatment providers and lack of continued engagement or awareness of your situation on the part of your command.  You remained at  until the completion of your enlistment obligation.  On 24 July 2012, you were discharged from the Navy on the basis of the completion of your required active service obligation, and received an honorable characterization of service and a reentry (RE) code of RE-6. 

In your application, you contend that you were abandoned by your command, suffered at the hands of your immediate supervisor onboard the  , and should have been processed by a Medical Board or Physical Evaluation Board (PEB) for your medical conditions, including Post Traumatic Stress Disorder (PTSD).  You ask for an upgrade to your discharge characterization and referral to a Medical Board, referral to a PEB, or in the alternative, Medical Retirement. 

As part of the review process, the Council of Review Board (CORB) reviewed your request and issued an AO.  The CORB determined that the evidence does not support your request.  The AO noted your in-service treatment and diagnoses, and noted the 2018 letter from who treated you in 2009.  The CORB considered your application and noted your deployment, the challenges you faced after returning from , your command climate, and the reference to possible PTSD.  The CORB states that even in consideration of the information in your record and your submissions to the Board, there is insufficient evidence to support a finding of unfitness for continued Naval service.  The CORB relied in part on the evaluations of your work performance, and noted that your duty was judged to have been at least adequate (even warranting a recommendation of “promotable”) at the time of separation.  The CORB concluded that even if you had been referred to a PEB, a finding of fit to continue naval service would have been the likely result.  

The AO was provided to you, and you submitted a response.  In your response, you disagree with the conclusions of the CORB and take issue with the CORB’s statement that prior to your discharge, your “depression was assessed as mild and in partial remission.”  You reiterate that you were discharged from the Navy while in a LIMDU status after mistreatment by your chain of command onboard the , and that your discharge was based on high year tenure. You again state that you were left to your own devices, your discharge was mismanaged by the Department of the Navy, and that you were suffering from depression, borderline personality disorder, and PTSD.  You assert that you were discharged while you were in crisis, and that you met the criteria for a Medical Board.  You again ask for referral to a Medical Board with an eye toward received “a more appropriate medical retirement.” 

The Board carefully reviewed your request, your available records, the AO, your supplemental submissions, and your response to the AO.  With respect to your contentions that the previous Board was incorrect in its conclusions that you were performing the duties of your office, grade and rank at the time of your discharge, the Board noted that your service was sufficient to enable you to complete your required active service obligation and earn an honorable characterization of service.  The Board noted that you state that you were assigned to a work center but not required to report on a daily basis. In light of your claim, however, the Board considered that you were received medical treatment from a variety of mental health providers while on active duty and your treatment provider from 2009, stated in his 22 July 2018 letter that during the treatment period in 2009, you appear to have responded well and relatively quickly to psychotherapy.  The medical provider noted that your condition did appear to have worsened over the following two years.  The Board noted that even in consideration of your mental health struggles, a diagnosis of a condition is insufficient to warrant a finding of unfitness.  In light of your earlier responsiveness to treatment, your ability to complete your service obligation, and in consideration of your honorable characterization at discharge, the Board concluded that you did not establish that you diagnosis/mental health challenges rendered you unfit for continued duty. 

The Board concurred with the AO and determined that your mental health conditions at the time of your Naval service do not appear to have merited a referral to a Medical Board or a PEB.  The Board, like the CORB, noted that the presence of a diagnosis, to include PTSD, does not mandate a finding of unfitness.
 
With respect to your claims of maltreatment by the command, including poor leadership, bullying, sexual harassment and racism, the Board noted your concerns but found there was insufficient evidence either in your record or submitted with your application to substantiate the claims.  Absent sufficient evidence to support the claims, the Board reviewed your discharge in receive treatment.  The Board concluded that the  appears to have acted, in part, in your best interest and that there is insufficient evidence to find that you were subjected to maltreatment which rendered your discharge either erroneous or unjust. 

The Board reviewed your contention that the VA’s continued treatment was the type of care you should have received while in the Navy.  The Board considered that you provide evidence of having be treated by 18 different mental health providers.  Nonetheless, the Board determined that the nature of the care and the number of treatment providers you had does not establish an unfitness for duty or a failure to properly refer you to a Medical Board or PEB.  The Board again determined that your honorable discharge on the basis of high year tenure after completion of your required active service obligation, was issued without error or injustice, and does not merit corrective action to change the honorable service characterization to a medical discharge, 

It is regretted that the circumstances of your reconsideration petition are such that favorable action cannot be taken.  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 the absence of new matters for reconsideration, the decision of the Board is final, and your only recourse would be to seek relief, at no cost to the Board, from a court of appropriate jurisdiction. 

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,

9/17/2020
Executive Director