Dear : 
 
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 17 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, an Advisory Opinion (AO) from a Navy mental health provider, and applicable statutes, regulations, and policies. 
 
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 issues involved.  Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record. 
 
You enlisted in the Navy on 8 August 1988.  On your pre-enlistment physical, you stated you were in excellent health and you expressly denied any medical history of experiencing mental health, neurological, or psychological issues and/or symptoms. 
 
On 30 July 1991, you went to non-judicial punishment (NJP) for unauthorized absence (UA).  On the same day you received a “Page 13” counseling warning (Page 13) documenting your NJP and UA.  The Page 13 warned you any further deficiencies in your performance and/or conduct may result in disciplinary action and in processing for administrative separation. 
 
On 4 September 1991, you underwent a psychiatric evaluation and were diagnosed with a personality disorder, not otherwise specified with antisocial, narcissistic, and immature features.  Despite the personality disorder diagnosis, you were retained in the service but were decertified from the Personnel Reliability Program and transferred to Submarine Squadron Eight for a change of rating. 
 
On 7 November 1991, you went to NJP for a failure to obey a lawful general regulation and for hazing another shipmate.  As punishment, you received a punitive letter of reprimand and a suspended reduction in rank to the lowest enlisted paygrade of E-1.  You did not appeal your NJP.  On 7 November 1991, you received a Page 13 documenting your NJP and the Page 13 contained the similar administrative separation warnings for future misconduct.  On 18 February 1992, you received a Page 13 warning for the failure to pay just debts.  On 20 March 1992, the suspended portion of your November 1991 punishment was vacated and enforced due to continuing misconduct.  On 16 April 1992, you went to NJP for writing multiple checks without sufficient funds in amounts totaling no less than $4,000. 
 
On 24 April 1992, you were notified that you were being processed for an administrative discharge by reason of misconduct due to a pattern of misconduct and for misconduct due to the commission of a serious offense.  You waived your rights to consult with counsel, submit statements to the separation authority, and to present your case to an administrative separation board.  You did not object to the discharge.  Ultimately, on 26 June 1992, you were discharged from the Navy for a pattern of misconduct with an Other Than Honorable (OTH) characterization of service and assigned an RE-4 reentry code.  Following your discharge, in 2003, based on your own admission you spent 120 days in county jail for threatening statements made in the context of an ongoing domestic dispute with your spouse. 
 
Your contention that you suffered from mental health conditions while on active duty were fully and carefully considered by the Board in light of the guidance provided by 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. 
 
As part of the case review process, a Navy mental health provider who is a medical doctor and a Fellow of the American Psychiatric Association (MHP), reviewed your request for correction and provided the Board an AO dated 23 April 2020.  The MHP initially observed that you denied any history of mental health concerns or treatment in your pre-enlistment physical.  The MHP noted that other than your personality disorder diagnosis, there were no service records presented indicating you suffered any other mental health symptoms or conditions during your military service.  The MHP also noted that there were no clinical records discussing the existence of bipolar disorder during your military career, and no clinical records attributing your in-service misconduct to your post-discharge bipolar diagnosis.  The MHP concluded by opining that there was insufficient evidence to attribute your misconduct to any mental health condition. 
 
The Board carefully weighed all potentially mitigating factors, such as your contentions that included, but were not limited to:  (a) that your personality disorder has since been diagnosed as bipolar disorder, (b) your pattern of misconduct was beyond your control because your mental illness was never investigated/researched and treated by the Navy, (c) you believe that if you had the resources and medication that you have now, your behavior and conduct would have never been an issue, (d) your pattern of misconduct was triggered by your mental issues, (e) you have been homeless at times and unemployable at times as well, and (f) you seek a change of discharge so you can receive medical and mental health treatment as well as disability benefits from the VA.  However, the Board determined these mitigating factors and contentions were not sufficient to warrant upgrading your discharge or granting 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 concluded that there was insufficient evidence:  (a) to support a nexus between any mental health condition or symptoms and your misconduct, or (b) to support the argument that any such mental health conditions mitigated the misconduct that formed the basis of your discharge.  Even under the liberal consideration standard, the Board concluded that your misconduct was not due to mental health-related symptoms.  Additionally, even assuming arguendo that your pattern of misconduct was somehow linked to any mental health concerns, the Board determined that your military offenses were largely premeditated/intentional criminal conduct and would not be excused or mitigated by any mental health conditions, and also that your diagnosed personality disorder would not prevent you from understanding right from wrong.  Further, the Board noted the record shows you were notified of and waived your procedural rights in connection with your administrative separation.  In doing so, you gave up your first and best opportunity to advocate for retention or a more favorable characterization of service.  Moreover, absent a material error or injustice, the Board generally will not summarily upgrade a discharge solely for the purpose of facilitating U.S. Department of Veterans Affairs (VA) benefits, or enhancing educational or employment opportunities.  Lastly, the Board observed that despite being given multiple Page 13 warnings clearly outlining the ramifications of further deficiencies in performance and/or conduct, you still continued to commit serious misconduct up until your command finally processed you for separation.  Accordingly, the Board determined that there was no error or injustice in your discharge and concluded that your serious misconduct and disregard for good order and discipline merited your receipt of an OTH discharge. 
 
Additionally, the Board 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, including any arrests or convictions.  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 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,