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 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 28 August 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 17 March 1997.  On 19 November 1998, you received non-judicial punishment (NJP) for conspiracy to commit an offense and false official statement.  The same day you received a “Page 13” counseling warning (Page 13) documenting your NJP and warning you that any further deficiencies in your performance and/or conduct may result in disciplinary action and in processing for administrative separation.  However, on 14 January 1999 you recieved NJP for two specifications of unauthorized absence, willful disobedience of a chief petty officer, and dereliction of duty. 
 
On 14 January 1999, you were provided notice that you were being administratively processed for separation from the Navy by reason of misconduct due to the commission of a serious offense, and misconduct due to a pattern of misconduct.  On 14 January 1999, you expressly waived your rights to consult with counsel and to request an administrative separation board.  Ultimately, on 29 January 1999 you were discharged from the Navy for misconduct due to a pattern of misconduct with an other than honorable (OTH) characterization of service and assigned an RE-4 reentry code.  On 10 August 2000, the Naval Discharge Review Board determined that your discharge was proper and that no change was warranted.   
Your contention that you suffered from a mental health condition 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 contentions that included:  (a) you were discharged against your will and without the opportunity to go before a separation board, and (b) you have a mental issue that was not addressed and your chain of command was more concerned about discharging you from the military than my personal well-being.  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 insufficient evidence to conclude that you suffered from any type of mental health condition while on active duty, or that any such mental health condition was related to or mitigated the misconduct that formed the basis of your discharge.  As a result, the Board concluded that your misconduct was not due to mental health-related symptoms.   
 
The Board observed that you did not submit any clinical documentation or treatment records to support your mental health claims despite a request from BCNR on 30 October 2019 to specifically provide additional documentary material.  Additionally, the Board noted the record shows you were notified of, and expressly waived in writing, your procedural rights in connection with your administrative separation.  In doing so, you gave up your first and best opportunity to advocate for retention or a more favorable characterization of service, and thus any argument you were discharged without the opportunity to go before a separation board is baseless and entirely without merit.  Lastly, 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 concluded that the misconduct reflected in your record 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,