Docket No: 6345-19
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 you did not file your application in a timely manner, the statute of limitation was waived in accordance the 25 August 2017 guidance from the Office of the Under Secretary of Defense for Personnel and Readiness (Kurta Memo).  A three-member panel of the Board, sitting in executive session, considered your application on 20 November 2020.  The names and votes of the panel members 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, to include the Kurta Memo, the 3 September 2014 guidance from the Secretary of Defense regarding discharge upgrade requests by Veterans claiming post-traumatic stress disorder (PTSD) (Hagel Memo), and the 25 July 2018 guidance from the Under Secretary of Defense for Personnel and Readiness regarding equity, injustice, or clemency determinations (Wilkie Memo). 
 
You enlisted in the Navy on 30 August 1989.  Your pre-enlistment physical and medical history noted no psychiatric or neurologic conditions or symptoms.  On 2 May 1990 you received non-judicial punishment (NJP) for violating Navy Regulations.  On 11 June 1990 you received NJP for the wrongful use of a controlled substance.  On 29 April 1992 you received NJP for unauthorized absence (UA).  On 8 December 1992 you received NJP for UA and for the wrongful use of a controlled substance.  On 10 February 1993 you received NJP for the wrongful use of a controlled substance. 
 
In May 1994 you were convicted at a Special Court-Martial (SPCM) for three separate UA periods lasting 71, 46, and 40 days, respectively.  You received as punishment confinement and a discharge from the Navy with a Bad Conduct Discharge (BCD).  In the interim, your separation physical and medical history noted no psychiatric or neurologic conditions or symptoms.  Ultimately, on 29 July 1995 you were discharged from the Navy with a BCD and assigned an RE-4 reentry code.  
 
As part of the Board review process, the Board’s Physician Advisor, who is a medical doctor and Fellow of the American Psychiatric Association (MD), reviewed your contentions that you suffered from post-traumatic stress disorder (PTSD), traumatic brain injury (TBI) and depressive disorder along with the available records, and issued an AO dated 12 October 2020.  The MD concluded by opining that even though you have a post-service PTSD diagnosis, the preponderance of the evidence does not indicate you suffered from PTSD on active duty, or that your in-service misconduct is attributable to PTSD or other mental health conditions. 
 
The Board carefully weighed all potentially mitigating factors, such your contentions that included, but were not limited to:  (a) due to your state of mind you were acting out on active duty but served with honors and received medals for outstanding service, (b) you served on an ammunition ship and was in a constant state of fear of your ship being hit while in the Persian Gulf, (c) on active duty you began to develop symptoms of depression, anxiety, and PTSD and became fixated on death and the fear of dying, (d) your NJPs were a direct result of your mental instability, (e) you are homeless and destitute, and (f) your overall mental health declined due to your experiences, and your continued infractions were your acting out as a result of fear of returning to an active war zone.  However, the Board concluded these mitigating factors and contentions 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 nexus between any PTSD, TBI or depression and/or PTSD-related symptoms and your misconduct, and determined that there was insufficient evidence to support the argument that any such mental health conditions mitigated the misconduct that formed the basis of your discharge.  Even under the liberal consideration standard, the Board concluded that your misconduct was not due to PTSD, TBI, or depression-related symptoms.  The Board noted that the evidence of record did not demonstrate that you were not mentally responsible for your conduct or that you should not be held accountable for your actions.  Additionally, absent a material error or injustice, the Board generally will not summarily upgrade a discharge solely for the purpose of facilitating benefits from the Department of Veterans Affairs, 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 pattern of serious misconduct merited your receipt of a BCD. 
 
The Board also noted that, although it cannot set aside a conviction, it might grant clemency in the form of changing a characterization of discharge, even one awarded by a court-martial.  However, the Board concluded that despite your contentions this is not a case warranting clemency.  The fact remains is that you absented yourself from the Navy multiple times without any legal justification or excuse while you were still contractually obligated to serve.  You were properly convicted at a SPCM of serious misconduct, and the Board did not find any evidence of an error or injustice in this application that warrants upgrading your BCD. 
 
The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in your case in accordance with the Wilkie Memo.  Based upon this review, the Board concluded these potentially mitigating factors were insufficient to warrant relief.  Specifically, the Board determined that your repeated misconduct, as evidenced by your NJPs and SPCM, outweighed these mitigating factors.  Accordingly, given the totality of the circumstances, the Board determined that your request does not merit relief.  
 
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,