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 of record to be 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 to be 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 12 August 2020.  The names and votes of the panel members 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 service and medical records, an Advisory Opinion (AO) from a qualified mental health professional, and applicable statutes, regulations and policies. 
 
Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel would 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 and began a period of active duty on 11 April 1988.  On 12 May 1988, you received non-judicial punishment (NJP) for willful destruction of government property in violation of Article 108, Uniform Code of Military Justice (UCMJ).  That same day you received a “Page 13” counseling statement warning you that any further deficiencies in your performance and/or conduct may result in disciplinary action and in processing for administrative separation.  On 4 December 1989, you were convicted by a special court-martial (SPCM) of three specifications of unauthorized absence in violation of Article 86, UCMJ, assault upon a petty officer in violation of Article 128, UCMJ, and communicating a threat in violation of Article 134, UCMJ.   You were sentence to forfeitures of pay, a reduction in rank to the lowest enlisted paygrade (E-1), and confinement on 3 days of bread & water, followed by confinement for 45 days and 30 days of restriction. 
 
By memorandum dated 4 January 1990, you were notified that you were being considered for an administrative discharge from the Navy by reason of misconduct due to the commission of a serious offense as evidence by your NJP and SPCM.  On 25 January 1990, you expressly waived your rights to consult with counsel and to request an administrative separation board in writing.  On 23 February 1990, you were discharged from the Navy under other than honorable (OTH) conditions for misconduct due to the commission of a serious offense, and assigned an RE-4 reentry code.     
 
Due to your contention that you suffered from a mental health condition while on active duty, the Board considered your case in light of guidance provided by the Secretary of Defense (“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 by the Office of the Under Secretary of Defense for Personnel and Readiness (“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," 25 August 2017).  Accordingly, the Board gave liberal and special consideration to your record of service and your contentions about traumatic or stressful events you experienced, and their possible adverse impact on your service.   
 
As part of the review process, the BCNR’s Physician Advisor, a mental health professional and Fellow of the American Psychological Association, reviewed your application and provided the Board with an AO dated 27 May 2020.  As part of his review, he considered all available medical records in your case.  Specifically, he reviewed your in-service medical records, in which he found no evidence of any in-service mental health symptoms or conditions.  He also noted that you provided no evidence describing either in-service mental health symptoms or conditions, or post-discharge mental health conditions or behavioral changes arising from your alleged in-service mental health condition.  Based upon this review, the AO found insufficient evidence of a mental health condition attributable to your military service that may have mitigated your misconduct. 
 
The Board carefully weighed all potentially mitigating factors, including your contentions that you are suffering from mental health issues due to events that happened in service and need assistance from the Department of Veterans Affairs, and that you did not commit the assault for which you were convicted by the SPCM.  Unfortunately, even applying the liberal standard called for by the above referenced policies, the Board determined that these factors were not sufficient to warrant upgrading your discharge or granting any other relief in your case.  The Board simply found no convincing evidence that you suffered from any type of mental health condition while on active duty, or that any such mental health condition was related to or mitigated the misconduct that formed the basis of your discharge.  Accordingly, the Board did not find any error or injustice that would warrant any relief in your case.   
 
In addition to considering your case for error or injustice, the Board also applied the guidance provided by the Under Secretary of Defense (“Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations,” 25 July 2018), to consider whether any equitable relief is due in your case.  Unfortunately, even applying this guidance the Board determined that no such relief was appropriate at this time under the totality of the circumstances.   
 
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 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 correction of an official naval record, the burden is on the applicant to demonstrate the existence of probable material error or injustice. 

Sincerely,