DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 2886-19 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. Because your application was submitted with new documentation, 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 25 June 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, as well as the 12 May 2020 advisory opinion (AO) from a Navy mental health professional. You enlisted in the Navy on 22 September 1997. On 17 May 1999, you were convicted by summary court-martial for two periods of unauthorized absence from 26 September 1998 to 19 October 1998 (23 days) and 5 November 1998 to 16 March 1999 (132 days) and three instances of missing ship’s movement through design. Your record is incomplete in that it does not contain your notice of pending administrative separation action but the notice is listed in the commanding officer’s (CO) recommendation of 14 June 1999. After you waived your procedural rights, your CO recommended separation with an other than honorable (OTH) characterization of service by reason of misconduct due to commission of a serious offense. The discharge authority concurred with the CO and directed that you be discharged by reason of misconduct due to commission of a serious offense with an OTH characterization of service. On 13 July 1999, you were discharged with an OTH characterization of service. Your request for a change to your characterization of service was reviewed in consideration of your contention you suffered from sexual harassment and assault which led to service-connected Post-Traumatic Stress Disorder (PTSD), anxiety disorder, and depression. 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 12 May 2020. The AO noted your in-service record did not provide evidence of a mental health disorder but your petition and personal statement describe sexual harassment occurring through much of your military service that resulted in an unsafe feeling. The AO also noted you alluded to a possible military sexual assault but did not provide any clarifying information. Further, the AO noted there were no narratives in your post-discharge clinical records that included in-service sexual harassment or assault nor clinical explanations linking your post-discharge diagnosed mental health conditions to your in-service misconduct. The AO concluded there was insufficient evidence that your post-discharge diagnosis of PTSD can be attributed to your military service or that your misconduct is attributable to PTSD. The AO was provided to you on 18 May 2020, and you were given 30 days in which to submit a response. When you did not respond within 30 days, your case was submitted to the Board for review. The Board carefully reviewed your application, weighed all potentially mitigating factors, and considered your contention you suffered from PTSD, anxiety disorder, and depression while in service. Specifically, you contend “sexual harassment and assaults perpetuated by those in my command” led to these service-connected diagnoses. The Board also considered your statement regarding the working environment onboard the ship and the effect it had on your health. You further contend that rather than face a “real court-martial” upon your return from UA, you faced a “private summary court-martial” that did not address the sexual harassment you were experiencing but that presented you with two options: go back to your department or be released from the military. Relying on the AO, the Board determined there was insufficient evidence in the record to corroborate an in-service mental health condition that may have mitigated your misconduct. The Board determined additional post-service records describing your mental health diagnosis and its specific link to your military service and in-service misconduct were required. Even applying liberal consideration, the Board determined there was insufficient evidence to establish an error or injustice that warrants an upgrade to your characterization of service. 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, 9/1/2020 Executive Director