Docket No. 3863-19 Ref: signature Date 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 for Correction of Naval Records, sitting in executive session, considered your application on 28 August 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 qualified mental health provider, and applicable statutes, regulations and policies. You enlisted in Navy on 27 May 2009. In the fall of 2010, you reported symptoms related to depression and following a psychiatric evaluation, you were diagnosed with “major depressive episode with melancholia and bereavement/phase of life problem.” You were returned to full duty with psychiatric follow up. On 8 March 2011, you underwent a psychiatric evaluation at Naval Hospital and diagnosed with adjustment disorder with anxiety and depressed mood in the context of “difficulty adjusting to typical military life and stressors.” You were returned to your command and determined to be fit for full duty, but the Medical Officer recommended your administrative separation due to your unsuitability for continued military service. Your command subsequently initiated administrative discharge action by reason of convenience of the government (COG), specifically, due to condition not a disability. The factual basis for the separation was your adjustment disorder diagnosis on 8 March 2011. You were not entitled to present your case to an administrative separation board because you did not have the requisite years of service and the least favorable characterization was general (under honorable conditions) (GEN). Ultimately, on 16 May 2011 you were discharged from the Navy for a condition (not a disability) with a GEN characterization of service and assigned an RE-4 reentry code. In this regard, you were assigned the correct narrative reason and reentry code based on your factual situation. On 14 December 2013, the VA granted you a service-connection for “depressive with anxiety disorder” and assigned you a 50% disability rating. On 29 April 2016, the Board denied your request for a possible Physical Evaluation Board (PEB) disability retirement. On 16 March 2017, the Board granted your request to upgrade your discharge characterization to honorable, but expressly denied your request to change your narrative reason for discharge and reentry code. The Board relied on an 11 January 2017 AO from the Council of Review Boards (CORB) to render their decision. On 16 December 2019, the Naval Discharge Review Board determined by a 5-0 vote that there was propriety and equity in your assigned narrative reason and reenlistment code, and thus no relief was granted. Your contention that you suffered from a mental health condition on active duty was 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. A qualified mental health provider (MHP) also reviewed your request for correction and provided the Board an AO dated 15 July 2020. The MHP observed that your last psychiatric evaluation did not include bereavement as an active condition. The MHP concluded by opining that you were appropriately administratively separated for a condition not considered a disability, because your adjustment disorder condition rendered you: (a) unsuitable for service, (b) not unfit for duty, and (c) did not warrant referral to the PEB for possible medical retirement. The Board carefully weighed all potentially mitigating factors, such as your contentions that included, but were not limited to: that at the time of your discharge you were determined to be fit for full duty and recommended for promotion, and that an adjustment disorder is not authorized if bereavement is present. However, the Board concluded these factors and contentions were not sufficient to warrant changing your reentry code or narrative reason, or granting any other relief. The Board initially noted that the March 2011 adjustment disorder diagnosis did not include bereavement as an active condition, contrary to your contention. Further, the PEB process is independent from the administrative separation process and has different standards for relief, terminology, and objectives. Along those lines, the Board concurred with the CORB opinion where it stated: The mere presence of a medical condition…is insufficient to warrant either a finding of unfitness for continued Naval service or a specific disability rating by Department of the Navy PEB action in the absence of demonstrated duty performance impairment of sufficient magnitude as to render a service member unfit for continued Naval service. By contrast, eligibility for Compensation & Pension disability ratings by VA action is tied to the establishment of service connection and is manifestation-based without a requirement that unfitness for military duty be demonstrated. The Board determined that your adjustment disorder was of sufficient severity that it rendered you unsuitable for continued military service and warranted your administrative separation. Accordingly, even under the liberal consideration standard, the Board concluded that you received the correct narrative reason and reentry code, and that such action was in accordance with all Department of the Navy directives and policy at the time of your 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. 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 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,