Dear ,  
 
This letter is in reference to your reconsideration request dated 24 September 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.  
 
A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 2 January 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.  Additionally, the Board considered the advisory opinion contained in Senior Medical Advisor letter 1910 CORB: 002 of 20 November 2017 and Director CORB letter 1910 CORB: 001 of 21 November 2017 along with your response to the advisory opinions. 
 
The Board carefully considered your arguments that you deserve to be placed on the disability retirement list and receive an upgrade to your characterization of service.  You assert that your mental health condition contributed to your misconduct and continues to require treatment.  You provided recent treatment records including a medical opinion from the  of Veterans Affairs.   Unfortunately, the Board disagreed with your rationale for relief.  First, despite applying liberal consideration to your case, the Board determined you were properly discharged with a Bad Conduct Discharge.  They concluded the preponderance of the evidence supports a finding that you were mentally responsible for the actions that formed the basis for your court-martial conviction.  They relied on the 2004 Rules for Courts-Martial 706 reports that documented that you were competent to stand trial and not criminally insane at the time you committed your misconduct.  Based on these reports, the Board determined you were properly tried by a special court-martial on 29 October 2004 and convicted based on the evidence of your misconduct.  Relying on this finding, they also determined you were properly awarded a Bad Conduct Discharge due to the seriousness of your misconduct.  Second, based on their finding that you were properly discharged pursuant to your court-martial conviction sentence, they found that the preponderance of the evidence did not support placing you on the disability retirement list.  Military disability regulations direct misconduct processing to supersede disability processing.  Therefore, the Board determined your medical board was properly cancelled on 23 December 2004 due to your pending punitive discharge from the Navy.  The Board was not convinced by your arguments regarding the dual processing policy change that was implemented in recent years because that policy was not in effect in 2004 and the Board felt your Bad Conduct Discharge would have been executed, even with dual processing, due to the seriousness of your misconduct.  Finally, the Board concluded your characterization of service remains appropriate.  Despite applying liberal consideration to your case, the Board determined the preponderance of the evidence supports maintaining your Bad Conduct Discharge.  They based their opinion on the number and types of offenses which you committed while on active duty.  The Board noted that you started a series of unauthorized absences approximately six months into your active duty period that spiraled into pre-trial confinement and your special court-martial conviction for a spectrum of misconduct including assaults against a Commissioned Officer and a Petty Officer.  In their view, your misconduct was of such of dangerous nature and disruptive to the good order and discipline of your command to merit maintaining your Bad Conduct Discharge characterization, even after applying the mitigation and liberal consideration associated with your mental health condition.  The Board noted that your mental health condition was discussed extensively at your court-martial by your expert witness and considered by the court-martial prior to sentencing you.  The Board felt this lessened the mitigation offered by your mental health condition since the evidence shows you already received the benefit of possessing a mental health condition when you were sentenced.  Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to your record.   
 
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.