Docket No: 3163-19 Ref: Signature Date Dear : This letter 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 10 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, relevant portions of your naval record, and applicable statutes, regulations, and policies, as well as the enclosed 12 May 2020 advisory opinion (AO) furnished by a Navy mental health professional. You enlisted in the Navy on 11 September 1969. On 14 October 1970, you were convicted at special court-martial (SPCM) of two periods of unauthorized absence (UA) from 22 April 1970 to 4 July 1970 and 31 August 1970 to 21 September 1970, and received confinement, forfeiture, and reduction in rank. You absented yourself on 24 December 1970, and remained in a UA status until apprehended on 4 May 1971. On 25 May 1971, you submitted a written request for discharge for the good of the service to avoid trial by court-martial for your 131-day UA. Prior to submitting this request, you consulted a qualified military lawyer, at which time you would have been advised of your rights and warned of the probable adverse consequences of accepting such a discharge. After receiving a medical consultation and review by the legal department, your commanding officer was directed to discharge you with an other than honorable (OTH) characterization of service. As a result, you were spared the stigma of a court-martial conviction, as well as the potential penalties of such a punitive discharge. On 25 June 1971, you were discharged with an OTH characterization of service. Although you did not specify a relief, it was assumed you desired an upgrade to your characterization of service. Your request for an upgrade to your characterization of service was reviewed in consideration of your contention that you suffered from a mental health condition due to racial discrimination during your 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 Requests 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 provider reviewed your request and provided the Board with an AO on 12 May 2020. The AO stated that your in-service personnel and medical records do not provide any evidence of psychological symptoms or mental health conditions during your military service. Further, your record contains a psychiatric exam attesting to the lack of any diagnosable mental health condition during your military service. Additionally, the AO noted you did not submit any evidence describing in-service mental health symptoms or conditions or any evidence of a post-discharge mental health condition as rendered by a mental health practitioner. The AO concluded there was insufficient evidence of a mental health condition attributable to your military service that may have mitigated your misconduct. The AO was provided to you on 13 May 2020, and you were given 30 days in which to submit a response. When you did not provide a response, your case was submitted to the Board for consideration. The Board carefully reviewed your application, weighed all potentially mitigating factors, and considered your contention that you suffered from a mental health condition due to racial discrimination while in service. Specifically, you contend the mental abuse you experienced would be considered “criminal” today. You further stated you were “not treated as a U.S. citizen” and were “prejudiced against,” “singled out,” and “treated worse” based on the color of your skin. The Board considered your account of threats to “get rid of” minorities while en route to which fueled your decision to not return after leave. You contend you felt you “had no other recourse” because you were “overwhelmed by the daily attacks on my life and character” and “afraid for my physical and mental well-being.” The Board also considered the study you submitted entitled “Race, Race-based Discrimination, and Health Outcomes among African Americans.” Even under the liberal consideration standard, the Board discerned no procedural defect in your discharge and determined your extended UA, especially after your previous SPCM, warranted an OTH characterization of service. Further, the Board concurred with the AO and concluded there was insufficient evidence of a mental health condition that may have mitigated your misconduct. Finally, the Board noted you received a benefit from being allowed to separate with an undesirable characterization of service instead of risking greater punishment at a court-martial. The Board thus concluded that there is no probable material error or injustice in your record warranting corrective action. 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,