Docket No: 7205-19/ 
           0725-14 
Ref: Signature Date      

Dear   

This letter is in reference to your reconsideration request received on 16 July 2019.  You previously petitioned the Board for Correction of Naval Records (Board) and were advised that your application had been disapproved.  Your case was reconsidered in accordance with Board procedures that conform to Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004).  After careful and conscientious consideration of the entire record, the Board found the evidence submitted was insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied.
      
Because your application was submitted with new documentation, the Board found it in the interest of justice to review your most recent application.  In this regard, your current request was carefully examined by a three-member panel of the Board, sitting in executive session, on 18 September 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 17 August 1971.  On 28 March 1972, you received nonjudicial punishment (NJP) for an unauthorized absence (UA) from 18 March 1972 to 27 March 1972. 
On 6 February 1973, you received a second NJP for UA from 8 January 1973 to 28 January 1973.  On 24 February 1973, you began a third period of UA which ended on 10 April 1973.  Subsequent to your return, you were evaluated by a medical officer who found no present evidence of physical drug dependence or adverse physical residue of drug abuse.  On 14 May 1973, you began another period of UA.  While UA, you were convicted by civilian court on 14 February 1974, for the sale of marijuana and served six and a half months in civilian prison.  On or about 28 August 1974, you were released from confinement.  On 3 September 1974, you submitted a written request for discharge for the good of the service to avoid trial by court-martial for the two UA periods and breaking restriction.  Prior to submitting this request, you consulted 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.  Your request was approved and on 3 September 1974, your commanding officer was directed by the discharge authority to discharge you with an other than honorable (OTH) characterization of service.  On 6 September 1974, you were discharged.   
 
Your request for a change to your characterization of service and narrative reason for separation was reviewed in consideration of your contention you experienced multiple traumatic events while deployed to Vietnam which led to service-connected Post-Traumatic Stress Disorder (PTSD).  Your request was fully and carefully considered by the Board in light of the Secretary of Defense's 3 September 2014 memorandum, “Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requested by Veterans Claiming Post Traumatic Stress Disorder,” of the 25 August 2017 memorandum “Clarifying Guidance to Military Discharge Review Boards 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,” and the 25 July 2018 memorandum, “Guidance to Military Discharge Review boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations.” 
 
The Board carefully reviewed your application, weighed all potentially mitigating factors, and considered your contention that you experienced multiple traumatic events while deployed to Vietnam, which resulted in undiagnosed PTSD.  You further contend your periods of UA were directly related to your undiagnosed PTSD.  The Board also considered your contention that your OTH characterization of service does not accurately reflect your time in service which, until the time of your UAs, was honorable.  Further, you contend your UA periods were not indicative of your character but were “actions medically recognized as symptoms of PTSD.”  Additionally, the Board considered your contention that you chose to be separated for the good of the service rather than face court-martial because court-martial might lead to “brig time” and you had previously witnessed sailors being beaten by guards.  The Board also considered your noted good behavior while in civilian confinement and your post-service record of working as a carpenter and remaining free of criminal conduct.  Lastly, the Board considered your PTSD diagnosis and each of the contentions you raise from the 25 August 2017 and 25 July 2018 memoranda.  The Board concurred there was sufficient evidence to support your PTSD diagnosis.  However, the Board, applying liberal consideration, determined there was not a clear nexus between your civilian misconduct of selling marijuana, which contributed to the extended UA period, and your diagnosed PTSD and concluded your mental health condition did not excuse or mitigate the drug-related misconduct which contributed to your extended UA which resulted in your administrative separation in lieu of trial by court-martial.  The Board, noting your post-service record and considering all guidelines of the referenced memoranda, concluded that an upgrade on the basis of clemency was not warranted.   
 
It is regretted that the circumstances of your reconsideration petition are such that favorable action cannot be taken.  You are entitled to have the Board reconsider its decision upon the 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 the absence of new matters for reconsideration, the decision of the Board is final, and your only recourse would be to seek relief, at no cost to the Board, from a court of appropriate jurisdiction. 
 
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,