Docket No. 5109 -19
Ref: Signature  Date
 
MR  
 

Dear Mr. :  
 
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 24 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, 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 24 June 1998.  On your pre-enlistment documentation, you noted no neurological or psychiatric issues or symptoms on your medical history.  On 26 May 1999, you commenced a period of unauthorized absence (UA) lasting twenty-seven days.  One week later after your first UA terminated, on 29 June 1999 you commenced another UA period that lasted forty-seven days.   
 
On 17 August 1999, you submitted a voluntary written request for an administrative separation in lieu of trial by court-martial for your forty-seven day UA.  You expressly waived your right to consult with a qualified military lawyer to be advised of your rights and warned of the probable adverse consequences of accepting such a discharge.  As a result of this course of action, you were spared the stigma of a court-martial conviction, as well as the potential sentence of confinement and the negative ramifications of receiving a punitive discharge from a military judge.  On 18 August 1999 your discharge request was approved.  On 2 September 1999, you received a written “Page 13” where you acknowledged that you were not eligible for reenlistment due to your administrative discharge request.  Ultimately, on 2 September 1999 you were separated from the Navy with an other than honorable (OTH) discharge.   
 
On 16 April 2009 the Naval Discharge Review Board (NDRB) determined that your discharge was proper as issued and that no change was warranted.  The NDRB concluded that the record of evidence did not demonstrate that you were not responsible for your misconduct or should not be held accountable for your actions due to medical problems, harassment, or change of career plans.  The NDRB also noted that you did not provide any evidence in support of your claims. 
 
Your contention that you suffered from anxiety attacks 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.  
 
The Board carefully weighed all potentially mitigating factors, such as your contentions that included, but were not limited to:  (a) that you were falsely accused of production and distribution of drugs and you continued to be harassed with threats of violence and investigated by your supervisors, (b) the false accusations, harassment and other issues caused you to suffer from anxiety attacks, (c) you returned after making the “horrible decision” to abandon your post, but you came back, (d) after your return the harassment continued so you broke down and left, and (e) you were afraid to report the harassment due to fear of retaliation from supervisors and violence from shipmates.  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 given your voluntary request for a good of the service discharge in lieu of a trial by court-martial and the overall seriousness of your cumulative misconduct.   
 
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 credible and convincing evidence that you suffered from any type of mental health conditions while on active duty or that any such mental health conditions or symptoms were related to or mitigated the misconduct that formed the basis of your discharge.  As a result, the Board determined that there is insufficient evidence to support any argument that your misconduct can be attributed to any mental health conditions or their related symptoms.  The Board observed that the only military medical records you provided involved a leg injury.  The Board also noted that you did not submit any clinical documentation or post-service treatment records to support your mental health claims despite a request from BCNR on 13 September 2019 to specifically provide additional documentary material.  Additionally, 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 impropriety or inequity in your discharge, and even under the liberal consideration standard, the Board concluded that your serious misconduct and disregard for good order and discipline 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,