Docket No:  2801-19 
Ref: Signature Date 
 
 
Dear : 
 
This letter is in reference to your reconsideration request received on 6 March 2019.  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 the evidence submitted was insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied.      
  
Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to their understanding of the issue(s) involved.  Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record. 
 
Because your application was submitted with new evidence not previously considered, the Board found it in the interest of justice to review your application.  Your current request has been carefully examined by a three-member panel of the Board, sitting in executive session on 28 July 2020.  The names and votes of the members of the panel will be furnished upon request.  Documentary material considered by the Board consisted of your application and all material submitted in support of your application.  In addition, the Board considered the advisory opinion (AO) furnished by a qualified mental health professional, dated 27 April 2020, which was previously provided to you. 
  
You presented as new evidence, numerous certificates of achievement, letters of support, business related correspondence with state of , Veteran Administration applications for benefits and letters denying benefits due to your character of service. You also presented civilian primary care records, vocational rehabilitation consultations, psychiatric treatment team notes, and a letter from a licensed clinical social worker stating she had been counseling you for a year for PTSD secondary to MST.  You presented a partial narrative of experiencing sexual harassment in boot camp, and post-discharge clinical evidence of having been diagnosed with PTSD as well as  mental health counselor’s letter stating you had a diagnosis of PTSD from Military Sexual Trauma (MST) from your  military service and attributing your misconduct to this condition. Additionally, you have asserted that you were mistreated seemingly because of color, sexually abused by a recruit, and that you reported this incident.  However, you assert that no action was taken against the recruit, and that you were instead sent to a to motivation platoon, demoted from second squad leader, and never given psychiatric help in boot camp when requested.  After careful and conscientious consideration of the entire record, the Board determined that your statement and evidence you provided, even though not previously considered by the Board, was insufficient to establish the existence of probable material error or injustice and thus not material.  
 
You have requested 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 Memorandum, “Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requested by Veterans Claiming Post Traumatic Stress Disorder” of 3 September 2014 and the "Clarifying Guidance to Military Discharge Review Board 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" memorandum of 25 August 2017. 
  
A qualified mental health professional further reviewed your request for correction to your record and provided the Board with an AO regarding your assertion that you were suffering from a mental health condition.  The AO noted in your personal statement, that you contend the upgrade was warranted due to experiencing PTSD due to MST and that your misconduct was attributable to your mental condition.  You described your experience of MST in boot camp as continually being subjected to another recruit rubbing his erection against your backside during formation.  You did not explain your experience of MST while incarcerated at .  A review of available service records revealed an enlistment physical examination in which you described yourself in “good health” and denied any history of substance abuse or mental health conditions.  In your separation physical examination, you reported your health as “good” but endorsed frequent trouble sleeping, depression or excessive worry, and “nervous trouble of any sort.”  
 
The AO noted that during the period from June to August 1974, there were several clinical encounters where you presented for complaints of “nervous problems” to include insomnia, recurrent nightmares, “jumpy feeling,” and anxiety.  On your confinement physical on 29 July 1974, the examiner noted you felt you should not be confined but instead should be in a “mental institution.” You reported brief suicidal ideation while intoxicated several weeks prior, but no suicidal ideation outside of that episode. There was no history given of MST or any traumatic events given.  Your mental status examination “revealed no evidence of an emotional disorder that would require processing via medical channels.” You divulged a lifelong history consistent with pathological character traits and you were diagnosed with Emotionally Unstable Personality and recommended for administrative separation. The remainder of your in-service health record was unremarkable.   
 
The Board considered the supporting documents you provided, including: numerous certificates of achievement, letters of support, business related correspondence with state of , VA applications for benefit and letters denying benefits due to character of service.  The Board also considered the civilian primary care records you provided that listed PTSD, ADHD, Anxiety, and Depression on your problem list, but no history of traumatic events or linkage to military service.  You also presented vocational rehabilitation consultations, which included extensive neuropsychiatric testing from December 2008 (No Diagnosis, no history of trauma or PTSD) and November 2013 (Diagnosed with ADHD and Cognitive Disorder, no history of trauma or PTSD).  A series of 2017, psychiatric treatment team notes from Maine Behavioral Healthcare noted a diagnosis of ADHD, but no history or trauma, sexual assault, or PTSD.  You presented a 31 October 2016, letter from a Licensed Clinical Social Worker from the  Vet Center stating she had been counseling you for a year for PTSD secondary to MST. She contended that your in-service behaviors of “alcohol abuse, absence without leave, and other misconduct were in response to sexual harassment by a peer in your basic training platoon and your command’s subsequent neglect in protecting you from further abuse.” She further states, “He was further abused while incarcerated at .”  Your in-service medical record shows you presenting to sick call numerous times in 1974, prior to your court-martial, with complaints of “nervous problems” to include insomnia, recurrent nightmares, “jumpy feeling,” and anxiety.  These presentations led defense counsel to request a neuro-psychiatric evaluation at which you were, diagnosed with an Emotionally Unstable Personality, and recommended for administrative separation.   
 
You did not voice any symptoms to the psychologist suggestive of PTSD or events of MST.  You also endorsed psychological symptoms on your separation physical examination.  You did not provide any information regarding a second sexual harassment experience while incarcerated after your court-martial.  An in-service neuro-psychiatric evaluation “revealed no evidence of an emotional disorder.”  Your diagnosis of PTSD occurred over thirty years after your discharge with only one letter providing a passing linkage to your in-service misconduct. Though some of your misconduct may be attributable to your stated MST/PTSD (e.g., UA as avoidant behavior, fighting from increased irritability and impulsivity, alcohol abuse as self-medication), it is harder to attribute other more complex and goal-oriented behaviors (e.g., larceny, robbery) to this possible early state of PTSD from your MST (sexual harassment).  Therefore, based on the available evidence, the AO opined that there is sufficient evidence available that you may have been experiencing the earliest phases of PTSD from your described MST while in-service.  However, there is insufficient evidence to attribute the full range of your misconduct to this mental health condition. 
  
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,