Docket No. 5771-19 
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.   
 
You enlisted in the Navy on 11 June 1984.  On 25 January 1985, you received a written “Page 13” counseling warning (Page 13) documenting a civilian arrest and conviction in November 1984 for driving under the influence of alcohol (DUI).  The Page 13 expressly warned you that any further deficiencies in performance and/or conduct could result in disciplinary action and in processing for administrative separation. 
 
On 3 July 1985, you received non-judicial punishment (NJP) for the wrongful use of controlled substances (codeine/morphine).  On 8 July 1985, you received a Page 13 entry documenting your NJP.  The Page 13 contained the same performance and conduct warnings as the previous Page 13 from January 1985.  On 23 August 1985, you received NJP for disobeying a lawful order.  On 12 November 1986, you received NJP for disobeying a lawful order, DUI on board  , and for incapacitation for duty.   
 
On 12 November 1986, your command notified you that you were being processed for an administrative discharge by reason of misconduct due to a pattern of misconduct and the commission of a serious offense.  The same day you elected in writing to waive your rights to consult with counsel and request an administrative separation board.  Thereafter, on 6 January 1987 a Navy Medical Officer determined that you were an alcohol abuser, but not alcohol dependent.  Ultimately, on 4 March 1987 you were discharged from the Navy with an “under other than honorable conditions” (OTH) characterization of service and assigned an RE-4 reentry code.  
 
Your contention that you suffered from post-traumatic stress disorder (PTSD) 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.  
 
The Board carefully weighed all potentially mitigating factors, such as your contention that you suffered from previously undiagnosed PTSD on active duty.  Unfortunately, the Board concluded that your mitigating factors and contention 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 credible and convincing medical evidence indicating that you suffered from any type of PTSD while on active duty or that any such mental health condition and/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 the argument that your pattern of misconduct can be attributed to any mental health conditions or their related symptoms.  The Board also observed that you did not submit any clinical documentation or treatment records to support your mental health claims despite a request from BCNR on 22 July 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 VA 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 was 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 record merited 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,