DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 1561-21 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 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. A three-member panel of the Board, sitting in executive session, considered your application on 30 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, applicable statutes, regulations, and policies, to include 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 the advisory opinion (AO) furnished by qualified mental health provider dated 19 July 2021, which was previously provided to you. On 17 August 2021, you provided a rebuttal 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. On 06 August 1980, you answered “yes” to a pre-service use of narcotics, dangerous drugs or marijuana on NAVCRUIT 1137/7, USN Alcohol and Drug Abuse Screening Certificate. An enlistment waiver was not required. You enlisted in the Navy and began a period of active duty on 24 September 1980. From 02 March 1981 to 24 March 1981 you were in an unauthorized absence (UA) status totaling 22 days. On 27 March 1981, you received non-judicial punishment (NJP) for this offense. On 01 April 1981, you received a counseling entry where you acknowledged the ship’s impending departure of 03 June 1981. From 05 May 1981 to 03 June 1981, you were again UA for 29 days. On 11 January 1982, you received a Special Court-Martial (SPCM) for UA and missing movement. You were sentenced to Confinement at Hard Labor for 45 days and forfeitures of $200.00 pay per month for two months. On 17 January 1982, the Convening Authority (CA) approved the forfeitures portion of your sentence as adjudged. However, the CA commuted any confinement received greater than 14 days to 26 days of restriction and hard labor without confinement for 27 days. On 31 January 1982, you received and acknowledged a counseling entry documenting derogatory contents and a 1.0 in military behavior in your evaluation. From 29 March 1982 to 03 June 1982, you were again UA for a period of five days. You received a second NJP for this offense on 16 June 1982. On 25 June 1982, you received another counseling entry documenting your poor performance and frequent involvement with military authorities. This entry warned you that continued misconduct may result in administrative separation processing resulting in a possible other than honorable (OTH) discharge and its effects. From 19 to 22 July 1982, you were UA for three days. You were issued technical orders to report to and commenced another period of UA from 23 July to 09 September 1982 totaling 48 days. You again were UA for three days from 20 – 23 September 1982. On 30 September 1982, the reduction in rank awarded during the NJP of 16 June 1982, was vacated and you were reduced to E-1. On 22 November 1982, you received a second SPCM for the three specifications of UA. You were sentenced to CHL for three months and to forfeit $200.00 pay per month for three months. On 04 February 1983, you were notified of pending administrative separation processing for Pattern of Misconduct. You elected to exercise your right to obtain copies of all correspondence and submitted a written statement on your behalf. You waived your right to consult with counsel and to an administrative discharge board. Additionally, you requested a general discharge under misconduct. In March 1983, you were informed of your Commanding Officer’s (CO) recommendation that you be discharged with an OTH characterization of service. Specifically, your CO stated that, you had “in no way earned benefits of a general discharge.” On 08 April 1983, you commenced another period of UA. On 29 July 1983, you were discharged in absentia with an OTH for misconduct. Your request was fully and carefully considered by the Board in light of the Secretary of Defense’s Memorandum, “Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requested by Veterans Claiming Post Traumatic Stress Disorder” of 3 September 2014 and the "Clarifying Guidance to Military Discharge Review Board and Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modification of their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment" memorandum of 25 August 2017. As part of the Board’s review, a qualified mental health professional reviewed your request for correction to your record and provided the Board with an AO regarding your assertion that you suffered from acute depression due to your mother’s illness. The AO noted your in-service records did not contain evidence of a diagnosis of a mental health condition. The AO further noted throughout your disciplinary actions, counselings, administrative processing, enlistment and discharge physicals, there were no concerns cited which would have warranted referral to mental health resources. The AO opined, based on the available evidence, that the preponderance of objective evidence failed to establish you were diagnosed with a mental health condition or suffered from a mental health condition at the time of your military service, or that your in-service misconduct could be attributed to a mental health condition. On 17 August 2021, the Board received your rebuttal statement in response to the AO. You did not provide additional documentation that could attribute your in-service misconduct to a 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 Wilkie Memo. These included, but were not limited to, your desire to upgrade your discharge and your contention that you suffered from acute depression as a result of your mother’s illness (Cancer). Additionally, the Board noted and acknowledged all of your post-service accomplishments. Based upon this review, the Board concluded these potentially mitigating factors were insufficient to warrant relief. Specifically, the Board determined that your repeated misconduct, as evidenced by your two NJPs and two SPCMs for multiple specifications of missing movement and for being on multiple UAs totaling 110 days, not to include your last period of UA which commenced on 08 April 1983, until you were discharged in absentia on 29 July 1983 (112 days), outweighed these mitigating factors. Additionally, the Board concurred with the AO. 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 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, 9/15/2021 Executive Director