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 5 February 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 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) (Kurta Memo, Hagel Memo, and Wilkie Memo collectively, “Clemency Memos”).   
 
You enlisted in the Navy on 11 November 1979.  Your pre-enlistment physical examination noted no psychological or neurological conditions or symptoms.  On 26 November 1979 you received non-judicial punishment (NJP) for possession of a controlled substance.  On 17 December 1979 your commanding officer (CO) issued you a “Page 13” retention warning (Page 13).  The Page 13 warned you that any further misconduct may result in disciplinary action and/or processing for administrative separation.  However, on 5 March 1980 you received NJP for insubordinate conduct and two specifications of failing to obey a lawful regulation.   
 
On 15 May 1980 you reported for duty on board the USS  in .  On 30 July 1980 you received NJP for provoking speech and gestures.  On 27 August 1980 you received NJP for insubordinate conduct.  On 6 October 1980 you received NJP for insubordinate conduct, failure to obey a lawful order, disobeying a superior commissioned officer, false official statements, and communicating a threat.  On 19 October 1980 you received NJP for two specifications of assault.   
 
On 3 November 1980 you were notified that you were being processed for an administrative discharge by reason of misconduct due to frequent involvement of a discreditable nature with military authorities.  You consulted with counsel and subsequently waived your right to present your case to an administrative separation board (Adsep Board).  In the interim, on 17 December 1980 you received NJP for unauthorized absence, failure to obey a lawful order, and communicating a threat.  On 18 December 1980 your CO recommended to the separation authority that you receive a general (under honorable conditions) characterization of service.  In his endorsement, the CO stated: 
 
Seaman Recruit [R]’s frequent involvement with military authorities from three different commands and his general misconduct clearly demonstrate his inability to adapt to a military environment.  His presence onboard has had a negative impact on the morale and potential retention of fellow crew members. On 16 July 1980 while transiting in the Ocean,    “fell” overboard.  Although it could not be proved conclusively that he jumped, he had prior to the incident stated to various individuals his intent to do so.  He is a malcontent who does not possess the potential for future useful service.  (emphasis added). 
 
Ultimately, on 5 January 1981 you were discharged from the Navy for a pattern of misconduct with an other than honorable (OTH) characterization of service and assigned an RE-4 reentry code.   
 
As part of the Board review process, the Board’s Physician Advisor who is a licensed clinical psychologist (Ph.D.), reviewed your contentions and the available records, and issued an AO dated 28 December 2020.  The Ph.D. initially 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 or early PTSD symptoms.  The Ph.D. also observed that your in-service records revealed an alternative description of the purported trauma/man overboard incident.  The Ph.D. noted that you were evaluated by medical and you claimed you were feeling nauseated, started to vomit, blacked out, and woke up in the water.  The Ph.D. also noted that you underwent a psychiatric evaluation after your purported trauma and were not found to suffer from a mental health condition at the time.  The Ph.D. determined that your misconduct prior to the purported trauma cannot be mitigated by PTSD.  The Ph.D. noted that although you contended you were diagnosed with PTSD post-service you did not present any evidence linking your post-service diagnosis to your active duty misconduct.  The Ph.D. concluded by opining that although you carry a post-service PTSD diagnosis, the evidence failed establish you suffered from service-connected PTSD, or that your misconduct could be attributed to PTSD or any other 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 suffered a severe, traumatic and life threatening incident in the course of your service while deployed with the Navy as a boatswains mate in the , (b) you felt you were forced overboard by other Sailors where you landed into dangerous shark infested waters and you felt that you were facing certain death, (c) this incident directly caused your PTSD which you have been suffering with for decades, (d) your PTSD was not diagnosed during your service and was not taken into account during your discharge, (e) your OTH characterization was inappropriate under current separation procedures because your misconduct did not rise to the present standards for that characterization, (f) your misconduct was an isolated incident and not based on a pattern of behavior that constituted a significant departure from conduct expected of service members, (g) you were not provided with written notice of your proposed discharge and not notified of your right to consult with counsel, and (h) you need this upgrade in order to obtain mental health benefits to affirmatively address your situation and obtain consistent regular employment in order to improve your financial condition.  However, given the totality of the circumstances, the Board determined that your request does not merit relief.   
 
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 pattern of serious misconduct was not due to mental health-related conditions or symptoms.  Moreover, the Board observed that you did not submit any clinical documentation or treatment records to support your mental health claims despite a request from the Board on 5 November 2019 to specifically provide additional documentary material.  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.     
 
The Board determined, contrary to your contentions, that you were afforded all customary due process rights in connection with your separation processing.  The Board noted that the record clearly reflects you were properly notified in writing of your proposed separation, and that you consulted with counsel prior to waiving your separation board.  The Board observed that your signed board waiver was on a standard Navy form and witnessed by a Navy Judge Advocate.  Additionally, 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 in conduct was 2.53.  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 pattern of serious misconduct which further justified your OTH characterization of discharge.  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 benefits from the Department of Veterans Affairs, or enhancing educational or employment opportunities.  The Board carefully considered any matters submitted regarding your post-service conduct and accomplishments, however, even in light of the Wilkie Memo and reviewing the record holistically, the Board still concluded that given the totality of the circumstances your request does not merit relief.  Accordingly, the Board determined that there was no impropriety or inequity in your discharge, and even under the liberal consideration standard, the Board concluded that your pattern of serious misconduct clearly merited your receipt of an OTH. 
 
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,