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 sitting in executive session, considered your application on 11 September 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.   
 
Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will 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 on 13 May 2002.  On your enlisted evaluation for the period ending 15 June 2007, it states:  “Found guilty of violating articles 80 and 121 of the UCMJ.”  Your DD Form 214 also has a corresponding “time lost” notation for a period of confinement dating from 28 March to 21 April 2007.   
 
Your service record also contains a “Record of Unauthorized Absence” (Page 6) from 10 March 2009 noting that you had been in civil confinement since 12 November 2008 and that a period of unauthorized absence (UA) began on 16 December 2008.  Your DD Form 214 also has a corresponding “time lost” notation for such period of civil confinement dating from 16 December 2008 through 27 September 2009, a UA period lasting 289 days.  Ultimately, after your release from civilian confinement, you were discharged from the Navy with an “other than honorable conditions” (OTH) characterization of service and assigned an RE-4 reentry code, on 20 January 2010. 
 
Your contention that you suffered from mental health issues and problems 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 26 July 2020.  The MHP observed that your in-service records failed to reveal any evidence of mental health symptoms or conditions.  The MHP noted that you submitted no medical documentation supporting either an in-service or post-service clinical diagnosis for a mental health condition.  The MHP concluded by opining that there was insufficient evidence of any mental health conditions attributable to your military service that may have mitigated your misconduct.   
 
The Board carefully weighed all potentially mitigating factors, such your contentions that included, but were not limited to:  (a) you have PTSD and you are trying to get benefits for it, (b) you have suicidal problems that originated while you were in the Navy brig in , , and (c) you need help with getting disability benefits.  Unfortunately, the Board concluded that your mitigating factors and contentions were not sufficient to warrant upgrading your discharge characterization or granting any other relief.    
 
In accordance with the published guidance, the Board gave liberal and special consideration to your record of service, and your contentions about any traumatic or stressful events you experienced and their possible adverse impact on your service.  However, even under the liberal consideration standard, the Board concluded that there was no convincing medical evidence indicating that you suffered from any type of PTSD or other mental health conditions while on active duty or that any such mental health conditions and/or symptoms were related to or mitigated the misconduct that formed the basis of your discharge.  As a result, the Board concluded that your misconduct was not due to mental health-related symptoms.  Moreover, the Board observed that you did not submit any clinical documentation or treatment records to support your mental health claims despite a request from the Board on 22 August 2019 to specifically provide additional documentary material.   
 
Absent a material error or injustice, the Board generally will not summarily upgrade a discharge solely for the purpose of facilitating Veterans Administration and/or disability benefits, or enhancing educational or employment opportunities.  The Board also found that significant negative aspects of your conduct or performance outweighed any positive aspects of your military record, and that your overall service is not otherwise so meritorious to warrant a discharge upgrade.  Accordingly, the Board determined that there was no impropriety or inequity in your discharge, and even under the liberal consideration standard, the Board found that your serious misconduct and merited your receipt of an OTH 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,