Docket No: 8489-19 
Ref: Signature Date
 
MR
 
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 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 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 26 June 1991.  On 26 May 1994 you were convicted at a General Court-Martial of unauthorized absence and obtaining services under false pretenses.   
 
On 30 June 1994 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.  You expressly waived your right to consult with counsel, submit statements on your own behalf, and to request an administrative separation board.  Ultimately, on 10 August 1994 you were discharged from the Navy for misconduct due to the commission of a serious offense with an other than honorable (OTH) characterization of service and assigned an RE-4 reentry code. 
 
Your contention that you suffered from mental health issues 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) on active duty you were going through a lot of personal issues being away from your family, (b) you started having suicidal thoughts that had a negative effect on your behavior, and (c) that you are in dire need of medical attention and an upgrade will allow you to receive medical and mental health benefits.  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 mental health conditions 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.  Moreover, the Board observed that you submitted only one treatment record from December 1999 to support your mental health claims following a request from the Board on 25 September 2019 to specifically provide additional documentary material.  The Board noted that your 1999 treatment record for anxiety and panic attacks specifically noted:  (a) the symptoms had only been present for three days and were moderate in severity, and (b) you had no significant prior history of mental health disorders.  As a result, the Board concluded that your misconduct in 1994 was not due to mental health-related symptoms.   
 
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.  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 period of time.  Moreover, 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.   
 
Lastly, the Board noted that character of military service is based, in part, on conduct and overall trait averages which are computed from marks assigned during periodic evaluations.  Your overall active duty trait average was 2.87 in conduct.  Navy regulations in place at the time of your discharge required a minimum trait average of 3.0 in conduct (proper military behavior), for a fully honorable characterization of service.  The Board concluded that your conduct marks during your active duty career were a direct result of your serious misconduct, which ultimately supported the separation authority’s decision to issue you an OTH characterization of service.  Accordingly, the Board determined that there was no impropriety or inequity in your discharge, and even under the liberal consideration standard, the Board found that your serious misconduct 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,