Docket No: 5465-19 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 relevant portions of your naval record and your application, 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 16 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, and the applicable Advisory Opinion (AO) dated 11 September 2020. You enlisted in the Navy and began a period of active duty on 29 August 1985. In your personal statement to the Board, you state that in December 1985, while stationed at the Naval Air , you were beaten unconscious in a bar and suffered trauma to your head and left eye. You state that Magnetic Resonance Imaging (MRI) was not performed. Your record reflects an Administrative Remark where you were counseled for participating in a breach of peace by fighting on 4 March 1986. On 10 April 1986, you received nonjudicial punishment (NJP) for violating Article 116 of the Uniform Code of Military Justice (riot or breach of peace). An Administrative Remark dated 3 June 1986, states you were dis-enrolled from the Advanced Electronic Field program for failure to demonstrate good academic performance throughout the training pipeline. In your personal statement to the Board, you detail a second head trauma on 13 September 1986, in which you were again beaten unconscious and suffered head and facial trauma. On 18 September 1986, you received a second NJP for a period of unauthorized absence (UA), failure to obey a lawful order or regulation, assault, false pretenses, and communicating a threat. On 19 December 1986, you received a third NJP for damaging military property, reckless driving, and false pretenses. Naval Hospital records from September 1987, indicate that you were treated for facial trauma. On 15 October 1987, you received a fourth NJP for failure to obey a lawful order and for being incapacitated for improper performance of duties. You were referred for a mental health evaluation the following month; and on 3 November 1987, you were diagnosed with alcohol abuse and a borderline personality disorder. On 11 February 1988, you were found guilty at Special Court-Martial of UA, disrespectful language, and wrongful use of a controlled substance (cocaine). On 21 November 1988, you were notified of administrative separation by reason of misconduct due to a pattern of misconduct and misconduct due to drug abuse. You elected to have an administrative board. According to the record, the board found that you did commit misconduct due to drug abuse and recommended your discharge under other than honorable conditions (OTH). You were discharged from the Navy on 29 March 1989, on the basis of misconduct due to drug abuse and received an OTH characterization of service and a reentry (RE) code of RE-4. In your application for correction, you request an upgrade to your OTH discharge characterization, restoration of your GI Bill benefits, restoration of fines, and over $31,000 in monetary compensation for treatment charges incurred from Veterans Affairs (VA) in, . You request correction because of “recently discovered medical evidence.” You provide a personal statement in support of your application in which you assert that you were the victim of an assault that left you with a severe brain injury which went undetected by Navy doctors. You contend that your brain injury was misdiagnosed and treated as a psychiatric disorder. You state you were unjustly humiliated, and incarcerated and fined for behaviors that were beyond your control. In 2014, when you heard about traumatic brain injuries (TBI), you began to suspect that you had been misdiagnosed. You assert that a December 2019 MRI confirmed that you had severe brain damage. You further contend that misdiagnosis by the Navy kept you from being properly treated for multiple TBIs that occurred during your enlistment. 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. The Board also reviewed your petition in light of the Under Secretary of Defense’s memorandum, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations” of 25 July 2018. As part of the review process, a physician advisor reviewed your request, and issued an AO dated 11 September 2020. The AO found that though you presented post-discharge evidence of head trauma and associated radiologic findings, you did not present evidence of a TBI diagnosis. Furthermore, there is no linkage between your post-discharge diagnoses and radiologic findings and your military service or in-service misconduct. The AO concluded that based on the available evidence, there is insufficient evidence that you incurred a TBI as a result of your military service or that your misconduct can be attributed to a TBI. The AO was provided to you, and you were given 30 days in which to submit a response. When you did not provide a response within the 30-day timeframe, your case was submitted to the Board for consideration. The Board, in its review of your entire record and application, carefully weighed all potentially mitigating factors, including your assertions that you were misdiagnosed by the Navy and did not receive appropriate medical treatment for a TBI. The Board considered your submissions to the Board, took into account the information in your record and reviewed your personal statement. However, even in consideration of your contentions of service-connected TBI, the Board concurred substantively with the conclusions of the AO. The Board did not find your post-discharge diagnoses persuasive in establishing a service-connected TBI that mitigated your misconduct. Given the frequency and nature of the misconduct reflected in your service record, the Board determined that your OTH characterization of service was issued without error or injustice. Further, the Board found that your OTH characterization of service did not meet the requirements to merit granting you entitlement to GI Bill benefits. With respect to your request for restoration of fines, the Board reviewed your available service record and determined that the forfeiture of pay and/or monetary fines imposed on you were associated with properly administered NJP or judicial (court martial) proceedings. Absent evidence of error or injustice in those proceedings, the Board concluded that such fines/monetary penalties were appropriately executed. With respect to monetary payment of $31,000 for charges incurred at the Miami VA office, the Board found that your service record did not reflect an actionable error or injustice that was connected to a monetary claim for charges from the VA. Accordingly, the Board declined to grant your request. The Board concluded that your OTH characterization of service was properly supported by the misconduct reflected in your service record, and that no corrective action is warranted. 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,