DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 6714-19 Ref: Signature Date Dear Mr. : This is in reference to your application for correction of your naval record pursuant to Section 1552 of Title 10, United States Code. 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 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 4 December 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 and personal statement, together with all material submitted in support thereof, relevant portions of your naval record, an Advisory Opinion (AO) from a qualified mental health provider, and applicable statutes, regulations and policies. The Board determined that your personal appearance, with or without counsel, would 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 originally enlisted in the Navy on 5 November 1986. Your pre-enlistment physical and medical history noted no psychiatric or neurologic conditions or symptoms. On 10 September 1988, you received non-judicial punishment for the wrongful use of a controlled substance, insubordinate conduct, and two specifications of unauthorized absence lasting one and two days, respectively. On 10 September 1988 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 drug abuse. You elected in writing to waive your rights to consult with counsel, submit statements to the separation authority, and to request a hearing before an administrative separation board. Ultimately, on 28 September 1988 you were discharged from the Navy for misconduct with an other than honorable conditions (OTH) characterization of service and assigned an RE-4 reentry code. Your contention that you suffered from mental health issues 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. As part of the Board review process, the BCNR Physician Advisor who is a licensed clinical psychologist (Ph.D.), reviewed your contentions and the available records and issued an AO dated 28 October 2020. The Ph.D. noted that your in-service records did not contain direct or indirect evidence of a mental health diagnosis or psychological/behavioral changes indicating any mental health condition. The Ph.D. concluded by opining that the preponderance of the evidence did not support your contention you suffered from a mental health condition on active duty or that your 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) you asked for psychiatric and medical help time and time again but did not receive it, and (b) your discharge was unjust due to your experiencing depression, drug addiction and physical/mental abuse. 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, the Board concluded that there was no nexus between any mental health conditions or 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 mental health-related conditions or 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 18 October 2019 to specifically provide additional documentary material. 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. The Board also noted that there is no provision of federal law or in Navy/Marine Corps regulations that allows for a discharge to be automatically upgraded after a specified number of months or years. Further, the Board observed the record shows you were notified of and waived 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. Additionally, 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 even under the liberal consideration standard, the Board concluded that your serious misconduct clearly merited your receipt of an OTH. In reviewing the circumstances of your separation and characterization of service, the Board considered the totality of the circumstances to determine whether relief is appropriate today in the interests of justice in accordance with guidance provided by the Under Secretary of Defense for Personnel and Readiness (Wilkie Memo of 25 July 2018). Accordingly, the Board considered and acknowledged your positive contributions to the Navy, the length of your active duty service to our nation, and your post-discharge achievements. Even considering these potentially mitigating factors in accordance with the above referenced guidance, the Board did not find that relief was in the interest of justice. The Board concluded that your OTH discharge characterization was issued without error or injustice, and that corrective action is not warranted. 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, 1/7/2021 Executive Director