Docket No: 4828-19 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. A three-member panel of the Board, sitting in executive session, considered your application on 5 October 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 and applicable statutes, regulations and policies. In addition, the Board considered the advisory opinion (AO) furnished by a qualified mental health professional dated 17 August 2020, which was previously provided to you. You enlisted in the Navy and began a period of active duty on 21 August 1986. On 14 July 1987, you received nonjudicial punishment (NJP) for disobeying a lawful order, unauthorized absence (UA), and failure to go to your appointed place of duty. Additionally, you were counseled and warned that further misconduct could result in administrative discharge. Your original service record was incomplete and did not contain any documentation pertaining to your separation from the Navy. Absent such evidence, the Board relied upon the presumption of regularity and presumed that the officials acted in accordance with governing law/policy and in good faith. Based on your Certificate of Release or Discharge from Active Duty (DD Form 214), it appears that you submitted a request for an other than honorable (OTH) discharge in lieu of trial by court-martial for two periods of (UA) totaling approximately 90 days. Your request was granted, and on 26 December 1989, you were discharged from the Navy with an OTH characterization of service in lieu of court-martial. You request an upgrade of your characterization of service on the basis that you suffered from a Mental Health Condition 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 regarding your assertion you were suffering from a Mental Health Condition during your service. The AO noted that you submitted no evidence that you exhibited any mental health symptoms or conditions during your military service, nor have you submitted any evidence of a post-discharge mental health condition as rendered by a mental health practitioner. The AO concluded that there is 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, such as your record of service, and desire to upgrade your discharge. The board also considered your assertions that you were under severe mental anguish and depression due to being falsely accused of a sexual assault of a girlfriend, that trial preparation and everything that was involved made it impossible to focus, and that you received a verdict of not guilty. Additionally, you assert that you did not seek mental health treatment at the time and just dealt with your stress and anxiety by yourself. The Board noted that you provided no evidence to support your contentions. The Board concluded these factors and assertions were not sufficient to warrant re-characterization of your discharge given your misconduct which resulted in the referral of charges to a court-martial, and your request for discharge. The Board also 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 (BCM/NRs) “in determining whether relief is warranted on the basis of equity, injustice, or clemency.” 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 given the totality of the circumstances and your lengthy UA, 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,