Docket No. 5086-19 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, sitting in executive session, considered your application on 10 July 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, as well as applicable statutes, regulations, and policies. You enlisted in the Navy on 28 October 1966. On 10 April 1967, you went to non-judicial punishment (NJP) for unauthorized absence (UA) and disobeying a lawful order. On 15 June 1967, you went to NJP for UA. On 30 June 1967, you went to NJP for UA. On 18 September 1967, you went to NJP for dereliction of duty and misbehavior of a sentinel. On 19 November 1967, you went to NJP for dereliction of duty. On 21 November 1967, you went to NJP for UA. On 22 November 1967, you went to NJP for disobeying a lawful order. On 23 November 1967, you went to NJP for disobeying a lawful order. On 11 January 1968, you went to NJP for UA. On 12 January 1968, you went to NJP for disrespect towards a commissioned officer. On 1 February 1968, you were convicted at a Summary Court-Martial (SCM) of: UA, breaking restriction, failure to obey a lawful order, and disobeying a lawful order issued by your superior petty officer. As punishment, you received confinement hard labor for one month and forfeitures of pay. On 4 March 1968, you were notified that you were being processed for an administrative discharge by reason of unfitness due to frequent involvement of a discreditable nature with military authorities. You elected in writing to be represented by counsel and to have your case heard by an administrative separation board (Adsep Board). On 13 March 1968, an Adsep Board convened in your case and you were represented by counsel. Following the presentation of evidence and witness testimony, the Adsep Board members determined by a preponderance of the evidence that you did have frequent involvement of a discreditable nature with military authorities. Subsequent to their findings, the Adsep Board members recommended that you be separated from the Navy by reason of unfitness with an undesirable discharge. On 16 March 1968, you received a “Page 13” counseling warning (Page 13) documenting low marks on your performance evaluation. The Page 13 specifically noted: “[B] requires almost constant supervision for every job assignment he’s given to ensure that he won’t leave his work for some lounging around. His attitude and work habits not only grate on his supervisors, but also on the rest of the men in the division who have to pull a little harder because [B] isn’t doing his share. [B] has on several occasions openly disregarded or shown disrespect towards officers and petty officers over him. [B] has been recommended for separation from the service.” On 24 March 1968, your commanding officer (CO) recommended that you be separated with an undesirable discharge. In his Adsep Board endorsement, the CO stated: “It is strongly recommended that Seaman Recruit [B] be separated from the naval service by reason of unfitness with an undesirable discharge. Every opportunity has been afforded SR B to advance and to improve his very poor record. He has been counseled extensively by many officers and senior petty officers of this command. This has included counseling by two different commanding officers and two different executive officers. He has served under different division officers and senior petty officers. He has been counseled by the Squadron Chaplain. In spite of these many attempts to take, or induce, corrective action his record became so poor that he was warned formally-twice-of possible consequences. The meaning and effect of administrative discharge procedures as well as his rights were carefully explained to him. Upon written request, his case was heard by an Administrative Discharge Board headed by a senior officer from outside this command and who had been appointed by Commander, . It is felt that SR [B] is indeed unfit to continue in the service of the U.S. Navy and should be separated from the Navy with an Undesirable Discharge.” Ultimately, on 25 April 1968, you were discharged from the Navy with an other than honorable (OTH) characterization of service. On 31 May 1977, your OTH discharge was upgraded to a general under honorable conditions (GEN) characterization by the Department of Defense Special Discharge Review Program (SDRP). However, a discharge upgraded by the SDRP does not remove any bar to Veterans Administration (VA) benefits. Your contention that you suffered from post-traumatic stress disorder (PTSD) was also 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 Requests 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. The Board carefully weighed all potentially mitigating factors, such your contentions that you have been diagnosed with PTSD related to your time in Vietnam and this was not taken into consideration when you were discharged, and the cause of your PTSD was being exposed to hostile fire too frequently because your superiors were racists towards you. Unfortunately, the Board determined these mitigating factors and contentions were not sufficient to warrant upgrading your discharge or granting any other relief in your case. 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 persuasive evidence that you suffered from any type of PTSD or mental health condition while on active duty, or that any such mental health conditions 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. The Board observed that you did not submit any clinical documentation or post-service treatment records to support a mental health diagnosis other than a 2016 VA questionnaire for disability evaluation. The VA questionnaire states that it is to be used for disability evaluation and not for treatment purposes. The Board concluded that the VA questionnaire alone is insufficient evidence of a service-connected mental health condition that may have mitigated your misconduct. The Board also noted that you provided no convincing evidence to substantiate your contentions of racism or that you were repeatedly subjected to hostile fire while stationed on board the USS . In the end, the Board concluded that you received the correct discharge characterization and reentry code based on the totality of your circumstances, and that such action was in accordance with all Department of the Navy directives and policy both at the time of your discharge and subsequent SDRP upgrade. Lastly, absent a material error or injustice, the Board generally will not summarily upgrade a discharge solely for the purpose of facilitating VA benefits, or enhancing educational or employment opportunities. Accordingly, the Board determined that there was no probable material error or injustice in your discharge, and concluded that your egregious pattern of misconduct and complete disregard for good order and discipline with your ten NJPs and one SCM clearly 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 and your discreditable involvement with military authorities, 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 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 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,