Docket No: 1729-21            
Ref: Signature Date 
Dear Petitioner:  
 
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 your application was not filed in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your application on its merits.  A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 27 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), and the relevant Advisory Opinion. 
 
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 began a period of active duty on 12 February 1996.  On 24 May 1996, you received nonjudicial punishment (NJP) for disorderly conduct.  On 23 October 2005, you were found guilty at general court-martial (GCM) for violating Uniform Code of Military Justice Article 86 (seven specifications of absence without leave); Article 108 (willfully damage military property); Article 109 (willfully damage 21 privately owned vehicles); and Article 121 (larceny and wrongful appropriation, did steal personal property of a value in excess of $500).  The Court sentenced you to a bad conduct discharge, confinement for 15 months, and reduction in rank to E-1.  On 15 March 2007, you were discharged from the Navy on the basis of the court-martial conviction and received a bad conduct discharge and a reentry (RE) code of RE-4. 
 
In your application to the Board, you request an upgrade to your bad conduct discharge.  You state that you are now convinced that the events that led to your court-martial and discharge from the Navy were caused by your inability to get the mental healthcare that you needed to pull yourself from a “very dark place” in your life.  You contend that: (1) you were extremely depressed, and your mind could not find rest due to severe anxiety; (2) the combination of the DSM caused you to depart from your normal ability to reason and make good decisions, and the night before you broke into the storage unit was a life changing decision that you replay in your mind at least 100 times per day; (3) you cannot find a reasonable reason as to why you would do such a thing, and you now know that the event was a cry for help from a person who was drowning in despair; and (4) your actions ruined your Navy career, caused you and your family continued harm, and still haunts you 15 years after the incident.  You have also provided evaluations, awards and a personal statement in support of your request.  In your personal statement, you note that you lost your opportunity to go to A School, and you became a disbursement clerk, but since you did not have A School completed, you contend that you were treated poorly and began to abuse alcohol to mask the pain.  You note that you later began to smoke marijuana to cope, and that you had Post Traumatic Stress Disorder (PTSD), and suffered from Anxiety and Depression due to PTSD.  You also note that you acted on impulse and without the mental health contributors, you would not have acted carelessly by breaking into the storage unit. 
 
As part of the review process, a Licenses Clinical Psychologist reviewed your request and issued an Advisory Opinion dated 6 July 2021.  The Advisory Opinion noted that your in-service records did not contain evidence of a diagnosis of a mental health condition.  The Advisory Opinion stated that although you describe mental abuse and having difficulty slowing your mind down, you did not describe how the symptoms prevented you from performing your duties.  The Advisory Opinion concluded that you may not have enjoyed your assigned duties and some of your experiences may have been stressful, however there was no evidence presented that your experiences of those issues were extraordinary or unique, or that your symptoms met the criteria for a mental health diagnoses.  Based on the available evidence, the Advisory Opinion found that the preponderance of available evidence failed to establish that you were diagnosed with a mental health condition, suffered from a mental health condition at the time of your military service, or that your in-service misconduct could be mitigated by a mental health condition.  The Advisory Opinion was provided to you, and you were given 30 days in which to submit a response.  When you did not provide a response within the 30-day timeframe, your case was submitted to the Board for consideration.   
 
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 contention that referenced above.  The Board also considered that prior to the GCM you received numerous commendations, had strong performance evaluations, and filled a billet normally reserved for more senior Sailors.  However, the Board noted the seriousness of the misconduct for which you were found guilty at GCM proceedings.  Even in consideration of your claims of suffering from PTSD, anxiety, and depression, the Board concurred substantively with the conclusion of the Advisory Opinion and determined that there is insufficient evidence to support a finding that you suffered from a mental health condition while in the Navy.  The Board found that the bad conduct discharge you received was neither erroneous nor unjust given the seriousness of your misconduct of numerous specifications of absence without leave, willful damage to military property, damage to multiple privately owned vehicles, and larceny/wrongful appropriation.  The Board considered your youth, your personal struggles as articulated in your statement to the Board, your statement that you lacked access to mental care, and your positive contributions to the Navy but found that the nature of your misconduct is such that clemency is not warranted.  Accordingly, the Board found that an upgrade to your discharge is not appropriate. 
 
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,   
                                                                             

9/17/2021


Executive Director