DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 2041-19 Ref: Signature Date Dear : This is in reference to your application of 5 February 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 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 13 February 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 advisory opinion (AO) from a mental health professional of 8 January 2020. You enlisted in the Navy and began a period of active duty on 8 October 2003. On 4 October 2006, you received non-judicial punishment (NJP) for failure to obey an order to sweep and making a false official statement. On 28 November 2006, you signed a performance evaluation you received due to your NJP which reflected you were a “significant problem” with a 1.83 in marks and had not been recommended for advancement or retention. Your evaluation covering the reporting period of 10 October 2006 to 15 July 2007 stated you were “making some progress” but your “poor decision making and lack of sound judgment have caused [you] to fall well short of [your] potential.” Your record is incomplete in that it does not contain all the documents pertaining to your administrative discharge. Based on your Certificate of Release or Discharge from Active Duty (DD Form 214), however, it appears you submitted a written request for discharge for the good of the service in lieu of trial by court-martial. Prior to submitting this request, you would have been required to confer with military counsel, at which time you would have been advised of your rights and warned of the probable adverse consequences of accepting such a discharge. Your request was granted, and your Commanding Officer was directed to discharge you for the good of the service with an other than honorable (OTH) characterization of service. As a result, you were spared the stigma of a court-martial conviction, as well as the potential penalties of a punitive discharge. You were discharged on 14 September 2007. Your request for an upgrade to your characterization of service was reviewed in consideration of your contention you have been coping with post-traumatic stress disorder (PTSD) since your departure from the military. Your request 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.” As part of the Board’s review, a mental health professional reviewed your request and provided the Board with an AO on 8 January 2020. The AO stated you have been diagnosed with PTSD that the Department of Veterans Affairs (VA) has determined can be attributed to military service. However, there is insufficient evidence to attribute your misconduct to your PTSD diagnosis. Based on the available evidence, the AO concluded there was insufficient evidence to attribute your misconduct to PTSD. The AO was provided to you on 8 January 2020, and you were given 30 days in which to respond. When you did not respond with 30 days, your case was submitted to the Board for review. The Board carefully reviewed your application, weighed all potentially mitigating factors in your case, and considered your contention that you have been coping with PTSD since your departure from the military and the “majority of [your] decisions have been the result of this condition dating back to [your] time in the military.” The Board, however, concurred with the AO and determined that there is insufficient evidence to support a finding that PTSD or a mental health condition contributed to or mitigated your misconduct. Even under the liberal consideration standard, the Board discerned no procedural defect in your discharge. The Board noted that, in requesting a discharge for the good of the service in lieu of trial by court-martial, you would have been required to meet with a military defense counsel and to admit that you were guilty of the misconduct alleged. Finally, the Board noted you received a benefit from being allowed to separate with an OTH characterization of service instead of risking greater punishment at a court-martial. The Board thus concluded that there is no probable material error or injustice in your record warranting corrective action. 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.