DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No. 1618-19 Dear : This is in reference to your application of 13 January 2019 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 that 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 26 March 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, an Advisory Opinion (AO) from a mental health provider, and applicable statutes, regulations and policies. You enlisted in the Navy and began a period of active duty on 1 August 1996. On your pre-enlistment physical, you expressly denied ever experiencing any mental health symptoms or conditions, or receiving mental health treatment. On 28 April 1998, pursuant to your guilty pleas, you were convicted at a Special Court Martial of four separate specifications of unauthorized absence, two specifications of insubordinate conduct toward a petty officer, failing to obey a lawful order, two specifications of the wrongful use of a controlled substance (marijuana), two specifications of larceny, disorderly conduct, and falsely altering an official medical chit. As punishment you received 120 days of confinement, a reduction to the lowest enlisted rank, and forfeitures of pay. On 18 May 1998, you were notified that you were being processed for an administrative discharge for misconduct due to the commission of a serious offense and misconduct due to drug abuse. You expressly waived in writing your rights to consult with counsel, submit statements to the separation authority, and to present your case to an administrative separation board. Ultimately, on 19 August 1998 you were discharged from the Navy for misconduct with an other than honorable (OTH) characterization of service and assigned an RE-4 reentry code. Your contention that you suffered from bipolar disorder and depression on active duty was fully and carefully considered by the Board in light of the Secretary of Defense's 3 September 2014 memorandum, “Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requested by Veterans Claiming Post Traumatic Stress Disorder,” the 25 August 2017 memorandum, “Clarifying Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modification of their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment,” and the 25 July 2018 memorandum, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations.” A military mental health provider (MHP), reviewed your contentions and the available records, and provided the Board an AO dated 20 December 2019. The MHP noted that a review of your records failed to reveal any entries or evidence suggesting you ever exhibited any psychological symptoms or behaviors suggestive of a mental health disorder. The MHP further noted that you did not submit any clinical documentation or treatment records to support a mental health diagnosis. The MHP concluded by opining that there is insufficient evidence of a service-connected mental health condition. The Board carefully weighed all potentially mitigating factors in your case, including, but not limited to: (a) since you were the age of 7 you used the service of a psychiatrist and were diagnosed with bipolar depression syndrome that affects your emotions and thought processes, (b) that you have really come a long way and who you were back then is not close to who you are today, (c) now that you are married and the father of 2 beautiful children your whole life and attitude has changed and you regret not finishing your enlistment, (d) you wish the Navy would have helped you with treatment instead of giving you an OTH, (e) if you knew back then what you know now you could have changed your output and results of your actions, (f) you were not supposed to be in the service anyway because of the bipolar depression diagnosis, and (g) that you want your discharge upgraded to be able to use some benefits. Unfortunately, the Board determined these mitigating factors and contentions were not sufficient to warrant upgrading your discharge or granting any other relief in your case. In accordance with the published guidance, 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 credible and convincing evidence that you suffered from any type of mental health conditions including bipolar disorder while on active duty, or that any such mental health conditions were related to or mitigated the misconduct that formed the basis of your discharge. Despite your claim that you had been under the care of a psychiatrist since the age of 7 and diagnosed with bi-polar depression syndrome, the Board noted that on both your pre-enlistment and separation physicals, you specifically stated that you were in good health, and denied ever experiencing any psychological or neurological abnormalities, mental health symptoms or conditions, or undergoing mental health treatment. Moreover, the Board observed that you did not submit any clinical documentation or pre/post-service treatment records to support any of your mental health claims despite a request from Board on 23 July 2019 to specifically provide additional documentary material. 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. Accordingly, the Board determined that there was no probable material error or injustice in your discharge, and even under the liberal consideration standard, the Board concluded that your serious misconduct and disregard for good order and discipline merited your receipt of an OTH discharge. Additionally, the Board reviewed your application under the recent guidance provided in the Under Secretary of Defense’s memorandum dated 25 July 2018 entitled, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations” (USD Memo). The purpose of the USD Memo is to ease the process for veterans seeking redress and assist Boards for Correction of Military/Naval Records “in determining whether relief is warranted on the basis of equity, injustice, or clemency.” The USD Memo noted that “increasing attention is being paid to…the circumstances under which citizens should be considered for second chances and the restoration of rights forfeited,” and that “BCM/NRs have the authority to upgrade discharges or correct military records to ensure fundamental fairness.” The USD Memo sets clear standards and principles to guide BCM/NRs in application of their equitable relief authority, and further explains that boards shall consider a number of factors to determine whether to grant relief. However, even in light of the USD Memo, the Board still concluded that, given the totality of the circumstances, your request does not merit relief. It is regretted that the circumstances of your case 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 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. Signed by: