Docket No 1822-21 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 considered an Advisory Opinion (AO) from a qualified mental health provider, a copy of which was previously provided to you. You were provided an opportunity to submit an AO rebuttal, and you did do so. You enlisted in the Navy at age 21 on 20 May 1964. Your original service number was . On 2 December 1964 you commenced a period of unauthorized absence (UA) that terminated after twelve days on 14 December 1964. On 4 January 1965 you were convicted at a Summary Court-Martial for your UA. As punishment, you received 25 days of confinement, forfeitures of pay, and a reduction in rank to the lowest enlisted paygrade (E-1). On 17 June 1966 you commenced a period of UA that terminated after 59 days on 15 August 1966 with your surrender to military authority. On 7 September 1966 you were convicted at a Special Court-Martial (SPCM) for your UA. As punishment you received confinement at hard labor for four months, forfeitures of pay, and a reduction in rank to paygrade (E-2). On 1 February 1967 you commenced a period of UA that terminated after 33 days on 6 March 1967 with your arrest by civil authorities in On 6 April 1967 you broke restriction and commenced another period of UA that terminated after 83 days on 28 June 1967 with your arrest by civil authorities in LA. On 28 July 1967 you were convicted at a SPCM for your 33 and 83 day UA periods. You received as punishment, confinement at hard labor for six months; forfeitures of pay, a reduction in rank to the lowest enlisted paygrade (E-1), and a discharge from the Navy with a Bad Conduct Discharge (BCD). On 24 August 1967 you underwent a neuropsychiatric screening. The Navy Medical Officer (MO) determined that there was no clinical evidence of neurosis or psychosis in your case and that you showed no signs of definite personality disorder. The MO determined that you knew and understood the difference between right and wrong and were able to adhere to the right. The MO concluded by opining that no formal psychiatric diagnosis was warranted. The MO remarked that you were fairly contented with your awarded BCD and noted that you believed it would not affect your plans to breed and sell horses on reservation land. On 14 November 1967 you waived your right to request restoration to duty in the naval service and requested execution of the adjudged BCD. You stated in writing that your reason for waiving your request for restoration was: “I just seem to get into too much trouble. I like to have too much fun, and I don’t like the service. I can’t take orders.” Upon the completion of SPCM appellate review in your case, on 13 December 1967 you were discharged from the Navy with a BCD and assigned an RE-4 reentry code. On 4 March 1983 the Naval Discharge Review Board denied your initial application for relief and determined that your discharge was proper as issued and that no change was warranted. 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 30 June 2021. The Ph.D. initially observed that your in-service records did not reveal any evidence of a mental health diagnosis, and noted that your alcohol use disorder was established prior to enlistment. The Ph.D. also noted that your neuropsychiatric screening ruled out symptoms of a mental health condition on active duty and that you provided alternative reasoning for your misconduct. The Ph.D. concluded by opining that the preponderance of available objective evidence failed to establish you suffered from a mental health condition on active duty or that your misconduct could be mitigated by 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 Hagel, Kurta, and Wilkie Memos. These included, but were not limited to: (a) you just had surgery on your arm and you felt you were going through PTSD, (b) you served three tours in on the in good faith and provided service to your country during the harshest of conditions, and (c) before you pass away you would like to say you were honorably discharged by the Navy. 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 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 that formed the basis of your discharge. The Board observed that your available active duty records did not contain evidence of a mental health diagnosis. The Board noted that although you stated you were experiencing certain mental health symptoms following surgery and also have a post-service 2021 PTSD diagnosis, active duty records contemporaneous to your service lacked sufficient evidence to establish a nexus between your mental health conditions/symptoms and your in-service misconduct. As a result, the Board concluded that your misconduct was not due to mental health-related symptoms. The Board determined the record clearly reflected that your pattern of misconduct was willful and intentional, and demonstrated you were unfit for further service. The Board also noted that the evidence of record did not demonstrate that you were not mentally responsible for your conduct or that you should not be held accountable for your actions. The Board also noted that there is no provision of federal law or in Navy/Marine Corps regulations that allows for a discharge to be automatically upgraded after a specified number of months or years. Additionally, absent a material error or injustice, the Board declined to summarily upgrade a discharge solely for the purpose of facilitating certain Veterans Affairs status or benefits, or enhancing educational or employment opportunities. Accordingly, the Board determined that there was no impropriety or inequity in your discharge, and even under the liberal consideration standard for mental health conditions, the Board concluded that your serious misconduct and disregard for good order and discipline clearly merited your receipt of a BCD. The Board also noted that, although it cannot set aside a conviction, it might grant clemency in the form of changing a characterization of discharge, even one awarded by a court-martial. However, the Board concluded that despite your contentions this is not a case warranting clemency. The simple fact remains is that you left the Navy while you were still contractually obligated to serve and you went into a UA status on 4separate occasions totaling approximately 187 days without any legal justification or excuse. You were properly convicted at a SPCM twice of serious misconduct, and the Board did not find any evidence of an error or injustice in this application that warrants upgrading your BCD. 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. 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