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

Docket No: 248-19 10748-16
Ref: Signature Date 

Dear

This letter is in reference to your reconsideration request dated 7 December 2018.  You previously petitioned the Board for Correction of Naval Records (Board) and were advised that your application had been disapproved.  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 the entire record, the Board found that the evidence submitted was insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied.
 
Because your application was submitted with new matters not previously considered, the Board found it in the interest of justice to review your most recent application.  In this regard, your current request was carefully examined by a three-member panel of the Board, sitting in executive session, on 27 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 (including your multiple correspondence packages), relevant portions of your naval record, an Advisory Opinion (AO) from a qualified mental health provider, your rebuttal thereto, and applicable statutes, regulations, and policies.
 
Regarding your request for a personal appearance, the Board determined that a personal appearance by you with or without counsel will not materially add to their understanding of the issues involved.  Therefore, the Board determined that a personal appearance was not necessary and considered this case based on the evidence of record.
 
You originally enlisted in the Navy on 22 October 1975.  Following your second honorable discharge on 12 February 1986, you reenlisted on 13 February 1986.  On 23 December 1994, you were placed in pre-trial confinement on the suspicion of committing unauthorized absence, burglary, assault, assault with a deadly weapon, and kidnapping.  On 20 July 1995, in accordance with your pleas of guilty, you were convicted at a general court-martial (GCM) of multiple offenses including rape, sexual assault, sodomy, burglary, and kidnapping. You were awarded confinement in excess of three years, reduction in rank to the lowest enlisted rank, and to be discharged from the naval service with a dishonorable discharge (DD).  Following the completion of the post-trial appellate review process in your case, your punitive discharge was ordered executed and on 15 April 1998, you were ultimately discharged from the Navy with a DD. 

Your contentions that you suffered from multiple mental health issues and bipolar disorder were 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 review process, a qualified mental health provider (MHP) also reviewed your request and provided the Board an AO dated 11 September 2019.  The MHP determined that the evidence does not support your contention that your in-service medical treatment for any mental health conditions was substandard, or that such treatment subsequently resulted in your committing misconduct.  The MHP also determined that it was not reasonable to conclude that your misconduct was caused by your mental health conditions.  The MHP concluded by opining that there was insufficient evidence to attribute your misconduct to any mental health condition incurred during military service. 

The Board carefully weighed all potentially mitigating factors, such as your contentions that included, but were not limited to:  (a) that you were diagnosed with multiple mental health issues while confined in the Marine Corps Brig , (b) that you were suffering from these mental health issues prior to your pre-trial confinement, (c) that your mental health issues greatly impacted your decisions on and before December 23, 1994, (d) that you attempted suicide multiple times prior to your pre-trial confinement, (e) that you have an extensive past psychiatric history, and (f) that your case is about missed opportunities and the Navy missed numerous opportunities to intervene and offer you mental health assistance.  The Board, however, concluded that these factors and contentions were insufficient to upgrade your discharge or grant 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, the Board substantially concurred with the AO and concluded that there was insufficient evidence to support a nexus between any mental health conditions and your admitted misconduct for which you were convicted by guilty plea by GCM.  Even under the liberal consideration standard, the Board concluded that your misconduct and related convictions were not due to mental health issues or mental health-related symptoms.  Even assuming, arguendo, that your GCM convictions were somehow linked to your mental health concerns, the Board determined that your offenses were intentional, criminal conduct, and would not be excused or mitigated by your mental health conditions as you contend.  Nor was the Board persuaded that your mental health symptoms prevented you from understanding right from wrong, or taking responsibility for your actions.  Accordingly, the Board determined that there was no probable material error or injustice in your conviction and discharge, and that the seriousness of your admitted misconduct supports your receipt of a DD. 

The Board also noted that, although it cannot set aside a conviction, it might grant clemency in the form of changing a characterization of discharge, even one awarded by a court-martial.  However, the Board unanimously concluded that, despite your contentions, this is not a case warranting any clemency.  During both your GCM trial and the GCM post-trial appellate review process, no substantive, evidentiary, or procedural defects were discovered with your conviction.  Your record of trial, GCM conviction, and punitive discharge received mandatory appellate review.  Had any actual defects existed, or if your mental health issues rendered you mentally incompetent to stand trial or lacking the mental responsibility for your charged offenses, either the trial or appellate court could have concluded as such and ordered the appropriate further review or relief.  

The Board also 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 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,