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

Docket No: 1543-21 
Ref: Signature Date 

Dear Petitioner: 

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 you did not file your application in a timely manner, the statute of limitations 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 23 August 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). Additionally, the Board considered a 26 July 2021 advisory opinion (AO) furnished by qualified mental health provider and your response to the AO.
 
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 and commenced a period of active duty on 24 October 1991. On 10 September 1992, you were notified of the initiation of administrative separation processing and your rights in connection therewith based on misconduct due to drug use. 

You initially requested to exercise your right to an administrative discharge board, but on 14 October 1992, after consulting with counsel, you waived your right to an administrative discharge board. On 28 September 1992, you received nonjudicial punishment for disorderly conduct and use of marijuana. On 19 October 1992, your commanding officer recommended to the separation authority that you be discharged with an other than honorable characterization of service. On 1 November 1992, the discharge authority directed that you be discharged with an other than honorable characterization of service. On 12 November 1992, your command requested permission to delay your discharge so that you could be a witness in connection with a civilian who was being investigated for selling drugs. The request was granted, and you were discharged on 9 February 1993, with an other than honorable characterization of service. 

The Board carefully considered all potentially mitigating factors in your petition to determine whether the interests of justice warrant relief in your case including in accordance with the Wilkie Memo. You contend that, post-service, you have been diagnosed with PTSD, and that the PTSD you suffered while on active duty might have mitigated the misconduct that resulted in your other than honorable characterization of service. You also provided matters in clemency based on your post-service accomplishments, stating that, since leaving the Navy, you built a productive life, married, had three children, started working at an international retailer in 1997, and you still work there today, having risen through the ranks and having lived overseas for over five years. You also described that you foster dogs in need of adoption, ran four full marathons, and you stay connected with family. You also stated that your father recently passed away, and he was a member of the American Legion having served in the US Army, and you would like to follow in his footsteps. 

In connection with your assertion of a mental health condition, the Board reviewed the AO, which was considered unfavorable to your request, as well as your response to the AO. The AO concluded that “it is my considered medical opinion the preponderance of objective evidence failed to establish Petitioner suffered from PTSD or other mental health conditions at the time of his military service, or his in-service misconduct could be attributed to PTSD or other mental health conditions.” In review of your response to the AO, the preparer of the AO stated, “[h]e provided some clarifying explanations for his contention, but offered no new or material clinical evidence. Therefore, the original AO stands as written.” 

Based upon its review, the Board concluded the potentially mitigating factors that you raised were insufficient to warrant relief. With respect to your contention relating to your mental health condition, the Board concurred with the AO and determined that relief was not warranted on this basis. With respect to your post-service clemency contention, the Board commended you for your diligent work efforts and family life and it closely reviewed your paragraph in support of this contention. The Board noted, however, that your petition did not include several elements that it needed to provide a basis to grant your petition, which by way of illustration may have included letters of support or commendation from third parties including letters of reference, certifications, awards, public records, evidence of educational attainment, and the like. The Wilkie Memo, cited above, sets forth a framework by which this Board reviews matters in clemency. Accordingly, the Board determined that there was no error or injustice in the assignment of your discharge characterization and found that your request does not merit relief. 

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 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, 
9/13/2021