DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 6457-19 Ref: Signature Date 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 you did not file your application in a timely manner, the statute of limitation was waived in accordance with 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 4 December 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 21 June 2000. Your pre-enlistment medical documents noted no neurological or psychiatric conditions or symptoms. You also denied ever being a sleepwalker on your medical history. On 19 October 2000 you left your duty station without legal authority and went into an unauthorized absence (UA) status. You remained in a UA status until 23 October 2000. On 5 November 2000 you again left your duty station without legal authority and went into a UA status until 6 November 2000. On 11 December 2000 you again left your duty station without legal authority and went into a UA status for 28 days until 8 January 2001. You did not face any discipline for each of your three UA periods, but the “time lost” was administratively added to your service obligation. On or about 6 February 2001 you left your duty station again without legal authority and went into a UA status for 217 days until on or about 18 September 2001. Unfortunately, your administrative separation (Adsep) documents are not in your electronic service record. However, based on the information contained on your Certificate of Release or Discharge from Active Duty (DD-214), you presumably submitted a voluntary written request for an other than honorable (OTH) separation in lieu of trial by court-martial for your lengthy UA period. Block 29 of your DD-214 “Time Lost” indicates that you were in a UA status from 6 February 2001 through 18 September 2001, a period lasting approximately 217 days. Time Lost describes periods on active duty spent either in a UA status or while serving in military confinement. Prior to submitting this voluntary discharge request, you would have conferred with a qualified military lawyer, at which time you would have been advised of your rights and warned of the probable adverse consequences of accepting such a discharge. Ultimately, on 19 October 2001, you were separated from the Navy with an OTH characterization of service. The Board noted that on your DD-214, the narrative reason for separation was “In Lieu of Trial by Court-Martial,” (ILTCM) and your separation code was “KFS,” which corresponds to an ILTCM Adsep. On 12 August 2004 the Naval Discharge Review Board determined that your discharge was proper as issued and that no change was warranted. 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) and bipolar schizoaffective disorder, and issued an AO dated 22 October 2020. The MD noted that a review of your service records did not reveal the existence of any mental health symptoms or conditions, and that there was no evidence presented of a mental health diagnosis or clinical history, or reference to your military service or in-service misconduct. The MD concluded by opining that the preponderance of evidence did not support your contention that you suffered from a mental health condition at the time of your military service, or that your in-service misconduct was attributable to a mental health condition. The Board carefully weighed all potentially mitigating factors, such your contentions that included, but were not limited to: (a) that have been receiving services for bipolar schizoaffective disorder and PTSD since 2007, and (b) you broke your hand and needed surgery on your leg and that is why you left the military. 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 convincing evidence that you suffered from any type of PTSD or PTSD-related symptoms 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. Even under the liberal consideration standard, the Board concluded that your misconduct was not due to PTSD or mental health-related symptoms. The Board also noted that, although one’s service is generally characterized at the time of discharge based on performance and conduct throughout the entire enlistment, the conduct or performance of duty reflected by a single incident of misconduct may provide the underlying basis for discharge characterization. Additionally, characterization under OTH conditions is generally warranted for misconduct, and is appropriate when the basis for separation is the commission of an act that constitutes a significant departure from the conduct expected of a sailor. The Board noted that the evidence of record did not demonstrate that you were not 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 serious misconduct and disregard for good order and discipline clearly merited your receipt of an OTH discharge. 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 periods of UA, outweighed these mitigating factors. Accordingly, given the totality of the circumstances, the Board determined that your request does not merit relief. Finally, despite the fact that your Adsep records were not in your service record, the Board relies on a presumption of regularity to support the official actions of public officers. In the absence of substantial evidence to rebut the presumption, to include evidence submitted by the Petitioner, the Board presumes that you were properly processed for separation and discharged from the Navy. In the end, the Board concluded that you received the correct discharge characterization based on your circumstances, and that such OTH characterization was in accordance with all Department of the Navy directives and policy at the time of your discharge. 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, 1/6/2021 Executive Director