Docket No:  2618-19 
Ref: Signature Date 
 
MR 
 
 
Dear Mr.  
 
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. 
 
A three-member panel of the Board, sitting in executive session, considered your application on 28 July 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, as well as applicable statutes, regulations, and policies.  In addition, the Board considered the advisory opinion (AO) furnished by a qualified mental health professional dated 1 April 2020, which was previously provided to you. 
 
You enlisted in the Navy and began a period of active duty on 11 December 1984.  On 10 July 1985, you were convicted by civil authorities of two counts of Petty-Theft.  On 9 August 1985, you were convicted by special court-martial (SPCM) of 48 days of unauthorized absence.  On 30 October 1985, you were notified of proposed administrative discharge processing to separate you from the Navy for misconduct due to commission of a serious offense.  After being afforded your procedural rights, you consulted with counsel, and did not elect your right to request an Administrative board.  Your case was subsequently forwarded to the separation authority, with the recommendation that you receive an other than honorable (OTH) discharge.  On 17 December 1985, the separation authority directed that you be discharged from the Navy for misconduct due to commission of a serious offense, under OTH conditions.  On 27 December 1985, you were so discharge.   
 
You request an upgrade of your characterization of service on the basis that you suffered from a mental health condition during your military service.  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.” 
 
A qualified mental health professional further reviewed your request for correction to your record and provided the Board with an AO regarding your assertion you were suffering from a mental health condition.  The AO noted that in your enlistment physical examination, you denied any history of substance abuse or mental health conditions and described your health as “good.” On 12 March 1985, you underwent a physical examination for Submarine School in which you denied any mental health symptoms or conditions.  On your Separation Physical Examination, you stated you were in good health and denied any mental health symptoms or conditions.  The examiner at that time found you medically qualified for separation without any consultations or further follow up noted.  The remainder of your in-service clinical records involved routine sick call issues and did not reveal any evidence of in-service mental health symptoms or conditions.  You did not provide additional clinical records or evidence related to your petition.  Unfortunately, you have submitted no evidence that you have a clinically diagnosed mental health condition.  Your in-service medical records provided no evidence you experienced any mental health symptoms or conditions during your military service.  The AO noted that additional information, such as post-service medical records containing a diagnosis of a mental health condition associated with your military service and linked to your military misconduct is required to possibly render an alternate opinion.  However, at this time, based on the available evidence, the AO opined that there is insufficient evidence of a mental health condition attributable to you military service to which your misconduct could be attributed. 
 
The Board carefully weighed all potentially mitigating factors, such as your record of service, and desire to upgrade your discharge.  The Board also considered your assertions that your pre-service “mental health issues” in the Job Corps and that in Reform School you nearly killed someone when you wanted to leave.  Additionally, the Board considered that you were hospitalized in a Mental Hospital and treated with psychiatric medications for about a year (although you are unsure of your diagnosis, you think it may have been Schizoaffective Disorder), and that after your discharge from the service, your continued to have legal and mental health issues.  Notwithstanding your contentions, the Board ultimately concluded that these factors and assertions were not sufficient to warrant recharacterization of your discharge given your misconduct, which resulted in your civil conviction and SPCM conviction.  Further, the Board concurred with the AO’s statement that, there is insufficient evidence of a mental health condition attributable to you military service to which your misconduct could be attributed. 
 
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,