Docket No:  3219-19 
Ref:  Signature Date 
                                
MR 
 
Dear Mr.  
  
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 18 May 2020, which was previously provided to you. 
 
You presented as new evidence a Department of Veterans Administration (DVA) Ratings Decision Letter granting service connection for “Major Depressive Disorder with Cannabis Use Disorder,” rated at 70% disability.  The letter also indicates your claim for PTSD was determined not service connected nor subject to treatment via the DVA healthcare system.  Additionally, you stated that the treatment you received while serving your country and its interest was undignified, and unbecoming of noncommissioned officers and officers who handled the many traumatic episodes you encountered.  After careful and conscientious consideration of the entire record, the Board determined that your statement and the 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  
Post-Traumatic Stress Disorder 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 information provided in order to evaluate your assertion you were suffering from a mental health condition during your service.  Based on the available evidence, the AO concluded there is sufficient evidence available that you likely experienced symptoms of Major Depression during your military service and that your misconduct may be attributable to your mental health condition.  
 
On 10 Jun 2020, you submitted information in rebuttal with new evidence not provided in your original petition that included your statement, legal brief, DVA letter, DVA Clinical Record of Problems Lists, and a DVA record.  On 16 June 2020, an updated AO stated you provided sufficient evidence that you suffered from depression (but not PTSD) during your military service, and this mitigated your in-service misconduct.  The evidence presented in the 10 June 2020 rebuttal to the advisory opinion further confirms the previous evidence.  Therefore, after considering the new material presented, it was opined that there is sufficient evidence available that you likely experienced symptoms of Major Depression during your military service and that your misconduct may be attributable to your mental health condition.   
 
Notwithstanding the AOs, the Board ultimately concluded that based on the pattern of your frequent misconduct, the evidence provided was not sufficient to warrant re-characterization of your discharge above a general (under honorable conditions) 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,