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

Docket No: 1801-19 
Ref: Signature Date 


This is in reference to your application 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 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 16 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, an Advisory Opinion (AO) from a Navy mental health provider, and applicable statutes, regulations and policies. 

You originally enlisted in the Navy on 22 May 1989 and reenlisted on 15 October 1994. On 17 May 1996 pursuant to your guilty pleas, you were convicted at a Special Court-Martial (SPCM) for missing movement of your ship and two charges of unauthorized absence (UA) lasting 22 and 30 days, respectively. You received as punishment 90 days of confinement, forfeitures of pay, and a reduction in rank from E-5 to E-3. 

On 1 July 1996, you were notified that you were being processed for an administrative discharge by reason of misconduct due to the commission of a serious offense.  You elected your right to consult with counsel but waived your rights to submit statements to the separation authority and to present your case to an administrative separation board.  Ultimately, on 27 February 1998, you were discharged from the Navy with an other than honorable (OTH) characterization of service. 

Your petition was fully and carefully considered by the Board in light of the Secretary of Defense's 3 September 2014 memorandum, “Supplemental Guidance to MilitaryBoards 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.” 

As part of the review process, the Board Physician Advisor, who is a medical doctor and Fellow of the American Psychiatric Association (MD), reviewed your contentions and the available records and issued an AO dated 27 February 2020.  The MD noted that there is no information in your military service record to indicate any mental health condition or to attribute your misconduct to any mental health condition.  The MD concluded by opining that there is insufficient evidence to attribute your misconduct to a service-connected mental health condition. 

The Board carefully weighed all potentially mitigating factors, such your contentions that included, but were not limited to:  (a) your misconduct was due to a mentally ill spouse, (b) that you were not capable of balancing the needs of your wife’s mental health issues with military life, (c) that your wife’s issues stretched back to your time in the military, (d) that your wife fought depression and wild mood swings for the entirety of her life prior to her 2013 suicide, and (e) that you regret the way things worked out with the Navy.  Unfortunately, the Board concluded these mitigating factors and contentions were not sufficient to warrant upgrading your discharge characterization or granting any other relief. 

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 medical evidence indicating that you suffered from any type of 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.  The Board was sympathetic to your petition in the wake of the tragic and untimely death of your spouse.  However, the Board determined that there was insufficient evidence to establish a nexus between your 1996 SPCM misconduct and your wife’s mental health issues culminating in her suicide seventeen (17) years later.  Further, the Board noted the record shows you were notified of and waived your procedural rights in connection with your administrative separation.  In doing so, you gave up your first and best opportunity to advocate for retention or a more favorable characterization of service.  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 found 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.