Docket No: 9453-19
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 29 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, and applicable statutes, regulations, and policies, to include the Kurta Memo, the 3 September 2014 guidance from the Secretary of Defense regarding 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).  The Board also considered an advisory opinion (AO) from a qualified mental health professional dated 15 December 2020.   
 
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 15 July 1992.  On 19 August 1993, you received nonjudicial punishment (NJP) for being disrespectful toward a chief petty officer on three occasions and being absent from your appointed place of duty.  On 29 September 1993, you received a second NJP for being disrespectful in deportment to a second class petty officer.  Subsequently, you were notified of pending administrative separation action by reason of misconduct due to commission of a serious offense.  After you waived your procedural rights and submitted a statement for consideration by the discharge authority, your commanding officer recommended you be discharged with an other than honorable (OTH) characterization of service due to misconduct.  The discharge authority approved this recommendation and directed discharge with an OTH characterization of service by reason of misconduct due to commission of a serious offense.  On 1 February 1994, you were discharged with an OTH characterization of service and assigned a RE-4 (not recommended for reenlistment) reentry code.  On 28 January 1997, the Naval Discharge Review Board (NDRB) upgraded your characterization of service to general, under honorable conditions (GEN). 
 
As part of the Board’s review, a qualified mental health professional reviewed your request and provided the Board with an AO on 15 December 2020.  The AO stated that your in-service records do not contain direct evidence of depression or psychological/behavioral changes which may have indicated depression.  Though you have presented evidence for your claims of in-service depression, the Board noted the clinical history available to the AO author did not provide information as to the circumstances affecting the onset of your mental health condition, psychological symptoms affecting your occupational and social functioning, or linkage to your in-service misconduct.  Based on the available evidence, the AO concluded there is insufficient evidence that you incurred a mental health condition as a result of your military service or that your in-service misconduct may be mitigated by a mental health condition.  The AO was provided to you on 15 December 2020, and you were given 30 days to respond.  When you did not respond within the 30 days, the case was submitted to the Board for review.   
 
The Board carefully reviewed your application, weighed all potentially mitigating factors, and considered your contention that your “mental health has taken its toll,” resulting in you being “institutionalized and hospitalized within the VA system for depression, alcoholism, and PTSD for the last couple of years.”  The Board further considered the letter of appreciation and performance evaluation from your military service, and the advocacy letter from your landlord and friend.  The Board, applying liberal consideration and relying on the AO, concluded there was insufficient evidence that your misconduct could be attributed to a mental health condition.    Unfortunately, the Board concurred with the NDRB’s determination that your characterization should be upgraded to GEN but did not find evidence of an error or injustice that warrants further upgrading your characterization of service to honorable or changing your reentry code and narrative reason for separation.   
 
The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in your case in accordance with the Wilkie Memo.  These included, but were not limited to, your desire to upgrade your discharge and contentions discussed above.  Based upon this review, the Board concluded these potentially mitigating factors were insufficient to warrant relief.  Specifically, the Board determined your conduct outweighed these mitigating factors.  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,