DEPARTMENTOFTHENAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 

Docket No: 9281-19 
Ref: Signature Date 

Dear 
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 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 22 January 2021. 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, an Advisory Opinion (AO) from a qualified mental health provider, and applicable statutes, regulations, and policies, to include the Kurta Memo, the 3September2014guidancefrom the Secretary of Defenseregarding 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) (Kurta Memo, Hagel Memo, and Wilkie Memo collectively, “Clemency Memos”). 

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 enlisted in the Navy on 18 March 2001. On 25 October 2003 you received non-judicial punishment (NJP) for unauthorized absence (UA). On 20 January 2004 during a competency for duty examination you tested positive for amphetamines. On 16 March 2004 you were convicted at a Summary Court-Martial for four specifications of UA, wrongful damage of government property, and two specificationsof failing to obey a lawful order.

On 5 April 2004 you were notified that you were being processed for an administrative discharge by reason of misconduct due to a pattern of misconduct, misconduct due to the commission of a serious offense, and misconduct due to drug abuse. You expressly waived your rights to consult with counsel, submit a written statement, and to present your case to an administrative separation case. Ultimately, on 21 April 2004 you were separated from the Navy with an other than honorable conditions (OTH) discharge. On 10 August 2006 the Naval Discharge Review Board denied your application for relief and determined that your discharge was proper as issued and that no change was warranted. 

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 15 December 2020. The Ph.D. noted that your in-service records did not contain evidence of a PTSD diagnosis or evidence of psychological/behavioral changes indicating any mental health condition. The Ph.D. also noted that throughout your disciplinary actions, counselings, and administrative processing, there were no concerns warranting your referral to mental health resources. The Ph.D. concluded by opining that although you carry a post-service PTSD diagnosis, the evidence fails to establish you exhibited behaviors associated with service-connected PTSD, or thatyourmisconductmay be mitigated by yourpost-service mental health condition. 

The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in your case in accordance with the Clemency Memos. These included, but were not limited to: (a) you were diagnosed with Graves Disease by military doctors before discharge, and (b) no one explained your option of substance abuse treatment while you were in the Navy. In accordance with the Clemency Memos, 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 PTSD or mental health-related 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 serious misconduct was not due to mental health-related conditions or symptoms. The Board also determined that the evidence of record did not demonstrate that you were not mentally responsible for your conduct or that you should otherwise not be held accountable for your actions. 

Additionally, the Board observed 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 in conduct was 2.0. Navy regulations in place at the time of your discharge required a minimum trait average of 2.5 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 pattern of serious misconduct which further justified your OTH characterization of discharge. The Board also noted that there is no provisionof federal law or in Navy/Marine Corp-s regulations that allows for a discharge to be automatically upgraded after a specified number of months or years. The Board determined that characterization under OTH conditions is generally warranted for misconduct and is appropriate when the basis for separation is the commission of an act or acts constituting a significant departure from the conduct expected of a Sailor. 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.
 
Based upon this review, the Board concluded these potentially mitigating factors were insufficient to warrant relief in light of the misconduct reflected in your service record. Accordingly, given the totality of the circumstances, the Board determined that your request does not merit relief. 

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, 
1/28/2021