Docket No:  3199-19/ 
            878-12 
Ref:  Signature Date 

 
Dear 
 
  
This letter is in reference to your reconsideration request received on 20 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 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  
24 August 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 24 May 2020, which was 
previously provided to you. 
 
You presented as new evidence, a letter of support from your brother and VA FORM 21-4138, Statement in Support of Claim.  Additionally, that you stated that you developed Post-Traumatic Stress Disorder (PTSD) and other behavioral conditions from your service in Vietnam, and that you were exposed to Agent Orange.  You further stated that you now have serious medical issues from your service to your country, and it is unjust that you cannot access disability benefits. However, 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 request an upgrade of your characterization of service on the basis that you suffered from  
PTSD 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.  The mental health professional reviewed your contentions in conjunction with your available records and additional information provided in order to evaluate your assertion you were suffering from a mental health condition.  Based on the available evidence, the AO concluded there is sufficient evidence available that you experienced levels of combat-related trauma that could reasonably be expected to have led to the development of a service-related mental health condition, likely PTSD.  The AO further opined that it is also reasonable to conclude that your misconduct may have been significantly attributable to your mental health condition.   
 
After carefully considering the evidence, although the AO opined there is sufficient evidence available to reasonably conclude that your misconduct may have been attributed to your mental health condition, the Board ultimately concluded that the seriousness of your misconduct far outweighed any mitigation the AO’s opinion provides.  The offenses you committed were very serious in nature and warranted the discharge characterization you received, even taking into consideration the potential existence of PTSD. 
 
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,