DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 2103-19 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 9 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, applicable statutes, regulations, and policies, and the 26 February 2020 advisory opinion (AO) from a Navy mental health provider, which was previously provided to you. Regarding your request for a personal appearance, the Board determined a personal appearance with or without counsel will not materially add to their understanding of the issues involved. Therefore, the Board determined a personal appearance was not necessary and considered your case based on the evidence of record. You enlisted in the Navy on 9 September 1996. In April 1998, you had an arthroscopic stabilization procedure to correct your left shoulder after a traumatic dislocation. After reinjuring your left shoulder in February 1999, you had an open Bankart stabilization procedure. On 1 November 1999, a medical board determined your condition interfered with the reasonable performance of your assigned duties and referred your case to a physical evaluation board (PEB). On 8 March 2000, you began a period of unauthorized absence (UA) which ended on 30 May 2000. On 31 May 2000, you received nonjudicial punishment for the UA period. Your record is incomplete in that it does not contain the documents pertaining to your administrative discharge but, based on your Certificate of Release or Discharge from Active Duty (DD Form 214), it appears that after being afforded all of your procedural rights, the separation authority directed discharge with an other than honorable (OTH) characterization of service by reason of misconduct due to commission of a serious offense. You were discharged with an OTH characterization of service on 14 August 2000. Your request for an upgrade to your characterization of service was reviewed in consideration of your contention you suffered from depression which resulted in your UA. 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 Navy mental health professional reviewed your request and provided the Board with an AO on 26 February 2020. The AO noted you did not submit any information or evidence supporting your claim that you suffered from an in-service mental health condition or that your misconduct was attributable to a mental health condition. The AO determined there was insufficient evidence to indicate you incurred a mental health condition from military service or that your misconduct should be attributed to a mental health condition. The AO was provided to you on 27 February 2020, and you were given 30 days in which to submit a response. When you did not provide a response, your case was submitted to the Board for consideration. The Board carefully reviewed your application, weighed all potentially mitigating factors, and considered your contention that you became so frustrated after badly injuring your shoulder, having repeated surgeries, and being on limited duty that you “went AWOL because of depression and all my stress.” The Board also considered your contention that you had “flawless service” until the “very end” and had already received the good conduct medal before your “poor decision.” The Board, relying upon the AO, concurred that there was insufficient evidence to support a finding that a mental health condition contributed to or mitigated your misconduct. The Board did not find evidence of an error or injustice that warrants changing your characterization of service. Additionally, the Board considered the medical board’s determination and referral to PEB but noted misconduct trumps medical processing and requires administrative separation processing vice medical disability processing. Regarding your Department of Veterans Affairs (VA) disability status, whether or not you are eligible for benefits is a matter under the cognizance of the VA, and you may contact the nearest office of the VA concerning your right to apply for benefits. If you have been denied benefits, you may appeal that denial under procedures established by the VA. 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. Sincerely, 4/24/2020