DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 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 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 13 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 also considered an Advisory Opinion (AO) furnished by a qualified mental health provider. You originally enlisted in the Navy on 25 October 2000. Your pre-enlistment medical examination on 26 April 2000 and self-reported medical history noted no psychiatric or neurologic conditions or symptoms. On 23 June 2001 you received a “Page 13” retention warning (Page 13) for failing to disclose a 1999 assault and battery charge on your pre-enlistment application. The Page 13 expressly warned you that any further deficiencies in your performance and/or conduct may result in disciplinary action and in the processing for administrative separation. On 28 February 2003 you received non-judicial punishment (NJP) for dereliction in the performance of duties by negligently failing to maintain control of an M-16 weapon. You waived your right to talk to counsel prior to deciding whether to demand trail by court-martial in lieu of NJP. You did not appeal your NJP. On the same day, your command issued you another Page 13. The Page 13 noted your NJP for dereliction of duty and expressly warned you that any further deficiencies in your performance and/or conduct may result in disciplinary action and in the processing for administrative separation. Ultimately, at the completion of your required active service, on 24 October 2005 you were discharged from the Navy with an honorable characterization of service and assigned an RE-1 reentry code. On 19 August 2008 you received an honorable discharge from the U.S. Navy Reserve. As part of the review process, the Board’s Physician Advisor who is also a medical doctor (MD) and a Fellow of the American Psychiatric Association, reviewed your mental health contentions and the available records, and issued an AO dated 29 July 2021. The MD initially observed that you contended that your NJP for forgetting your rifle his rifle in the galley occurred as a result of acute illness (for which he states he was seen in sick call), fatigue (due to carrying a heavy pack into the galley and suffering from ongoing sleep problems), and concentration problems from a prior head injury/TBI, and ongoing depression/anxiety exacerbated by his acute illness. The MD noted that you provided a November 2019 letter from a Psychologist from the Department of Veterans Affairs (VA) who determined that you have been diagnosed with a number of issues which could have contributed to you forgetting your firearm, but that she could not determine when the occurrence of depression and anxiety first appeared. The MD noted that your available active duty military records did not contain any clinical evidence of a diagnosed mental health condition or psychological/behavioral changes indicating a mental health condition. The MD also noted that your performance evaluations were consistently in the superior range with multiple “must promote” recommendations. The MD observed that the VA Psychologist’s post-discharge review and summary of your medical documents, which included medical records and VA administrative documents not available for the AO, reported in-service mental health symptoms and conditions contemporaneous to your misconduct that may have significantly contributed to your state of mind leading to his misconduct. The MD concluded by opining that the available indirect evidence, including your post-discharge diagnoses of mental health conditions and VA service-connection for such mental health conditions, supported your contention of mitigation due to mental health factors contributing to your in-service misconduct. The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in your case in accordance with the Kurta, Hagel, and Wilkie Memos. These included, but were not limited to: (a) you currently have a VA service-connection for (i) traumatic brain injury (TBI) to include headaches and subjective complaints of memory loss rated at 10%, (ii) generalized anxiety disorder and depressive disorder NOS being residuals of, and caused by, the service-connected TBI, and (iii) depression due to Gulf War Illness, and (b) your NJP was caused by a service-connected disability. However, given the totality of the circumstances, the Board determined that your request does not merit relief. In accordance with the Hagel, Kurta, and Wilkie 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 notwithstanding any post-service mental health diagnoses you have, there was no nexus between any mental health conditions and/or 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 at issue. As a result, the Board concluded that your misconduct was not due to mental health-related symptoms. Most importantly, 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 noted that there were no concerns cited in your service record warranting referral to mental health services. The Board also noted that after your purported TBI in 2002, you apparently did not seek medical treatment for your injury. Additionally, the Board noted that there was no convincing evidence presented indicating your military experience or life stressors was extraordinary or unique to trigger mental health symptoms or any traumatic stress response, or otherwise result in meeting the diagnostic criteria for a mental health condition. Lastly, the Board observed that your active duty performance evaluations were generally excellent and consistently recommended you for promotion and retention. The Board also observed that you earned your Seabee Combat Warfare Specialist designation and insignia in January 2004. Thus, the Board determined that despite your contention of experiencing TBI and other mental health conditions, you clearly did not suffer from any occupational impairment due to such mental health conditions and/or symptoms, and were able to effectively and efficiently carry out your assigned duties and responsibilities. The Board noted that this is your fourth attempt since 2013 to remove the NJP from your record. The Board was troubled by the fact that your stated contentions to grant relief on each petition have changed over time. In 2013 you argued that the NJP should be removed simply because it prevented you from getting a security clearance. In 2015 you contended that you had a service-connection for traumatic brain injury (TBI) which included memory loss. In 2018 you proffered that you were suffering from minor reactions to the Anthrax vaccine and that you were diagnosed by the VA as having Gulf War Illness with medically unexplained illnesses and depression. On this current petition, you argue that the Board has the authority to set aside an NJP when they were caused due to a service-connected disability. Unfortunately, your morphing contentions adversely impacted the credibility of your petition. Lastly, absent a material error or injustice, the Board declined to summarily remove derogatory material from a service record solely for the purpose of facilitating VA benefits, granting military awards/decorations, 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 NJP, and even under the liberal consideration standard, the Board concluded that your NJP should remain in your service record and that you do not qualify for the Navy Good Conduct Medal due to such NJP being in your record. 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, 8/18/2021 Executive Director