Dear 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 the 25 August 2017 guidance from 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 29 April 2021. The names and votes of the members of the panel 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 2018 Under Secretary of Defense Memo on Guidance to Military Discharge Review Boards and Boards for Correction of Military / Naval Records Regarding Equity, Injustice, or Clemency Determinations (Wilkie Memo). A review of your record shows that you entered active duty with the Navy in May 1975. After reporting to duty in you were seen by a mental health provider after complaining of discrimination and wanting to leave After being returned to duty, you entered a period of unauthorized absence on 29 October 1976 until 8 November 1976. Upon your return, you committed a series of misconduct on 10-11 November 1976 including disrespect, assault, resisting apprehension, damaging government property, and threatening to kill a Senior Chief Petty Officer. As a result, special court-martial charges were preferred against you on 12 November 1976. Subsequently, you submitted a request to be discharged with an Other than Honorable characterization of service in lieu of court-martial for the good of the service. You were discharged on 23 November 1976 with an Other than Honorable characterization of service pursuant to your request. Your final performance average was 3.8. The Board carefully considered your arguments that you deserve a disability discharge and upgrade to your characterization of service. You assert that a Chief mistreated you in Spain resulting in your hospitalization for acting violently. You also argue that you were not treated fairly since you received no help despite being discriminated against and suffered a psychotic break that was not addressed by your mental health provider. Unfortunately, the Board disagreed with your rationale for relief. In order to qualify for military disability benefits through the Disability Evaluation System with a finding of unfitness, a service member must be unable to perform the duties of their office, grade, rank or rating as a result of a qualifying disability condition. Alternatively, a member may be found unfit if their disability represents a decided medical risk to the health or the member or to the welfare or safety of other members; or the member’s disability imposes unreasonable requirements on the military to maintain or protect the member. In your case, the Board found insufficient evidence that you met the criteria for unfitness since there was no evidence you were diagnosed with a disability condition and your performance was within fleet standards for your paygrade with the exception of your misconduct. While your threats documented in your 27 October 1976 mental health evaluation along with your violent actions leading up to your court-martial charges suggest you were angry toward certain members of the Navy, the Board found no medical evidence to support your assertion of a psychotic break. Further, the Board noted that you were ineligible for disability processing on the basis of your administrative separation for misconduct that resulted in an Other than Honorable discharge. Disability regulations in effect at the time specifically direct misconduct processing to supersede disability processing. Regarding your request for an upgrade to your characterization of service, the Board concluded your assigned characterization remains appropriate. Despite your allegations of racism and mistreatment, the Board found no evidence in your application or record to substantiate your assertions other than statements you provided. Further, the Board considered the totality of your misconduct that formed the basis for your characterization of service and determined that your conduct was a significant departure than that expected from a service member. The disrespect you displayed toward a Lieutenant Commander, Lieutenant, and Senior Chief was persuasive evidence of your total disregard for authority. Your acts of violence toward the Senior Chief and the Petty Officer seeking to apprehend you was further evidence to the Board that you had no regard for the safety of others or the rules and regulations of the Navy. Finally, regardless of the fact you felt your misconduct was somehow justified, you requested to be discharged with an Other than Honorable characterization to avoid trial by court-martial. In the Board’s opinion, you already received significant mitigation and clemency based on your command’s decision to grant your request to be administratively separated vice a trial by court-martial. In avoiding a court-martial, the Board considered the fact you were facing the possibility of substantial confinement and a potential punitive discharge from the Navy. Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to 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, 5/6/2021 Deputy Director