Docket No: 2113-21 
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 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 11 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).  The Board also considered an advisory opinion (AO) from a qualified mental health professional dated 11 July 2021 and your rebuttal to the AO with supporting documentation.   
 
You enlisted in the Navy and began a period of active duty on 10 June 1982.  Unfortunately, the documents related to your administrative separation are not in your official military personnel file (OMPF).  In this regard, the Board relies on a presumption of regularity to support the official actions of public officers and, in the absence of substantial evidence to the contrary (as is the case at present), will presume that they have properly discharged their official duties. Notwithstanding, your Certificate of Release or Discharge from Active Duty (DD Form 214), reveals that you were separated from the Navy on 27 June 1985, with an other than honorable (OTH) characterization of service, your narrative reason for separation is “Misconduct – Commission of a Serious Offense,” your separation code is “HKQ,” and your reenlistment code is “RE-4.”  
 
As part of the Board’s review, a qualified mental health professional reviewed your request and provided the Board with an AO on 11 July 2021.  The AO noted that your in-service records did not contain evidence of a mental health condition.  The AO concluded by opining that the preponderance of objective evidence failed to establish you suffered from a mental health condition at the time of your military service or your in-service misconduct could be mitigated by a mental health condition. 
 
The Board carefully reviewed your application, weighed all potentially mitigating factors, and considered your assertion that the Department of Veterans Affairs (VA) deemed your service to be honorable.  You further state that your exam shows that you entered the service with a preexisting psychiatric condition.  You contend that your violations were not deemed willful or persistent misconduct, and if you are not made whole, the Board would be going against the VA, who deemed your service honorable. 
 
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 assertions as previously discussed, the submission of supporting documentation, and your desire to upgrade your discharge.  However, based upon this review, the Board concluded these potentially mitigating factors were insufficient to warrant relief.   
 
Please be advised that decisions reached by the VA to determine if a former servicemember rates certain VA benefits do not affect previous discharge decisions made by the Navy.  Additionally, the criteria used by the VA in determining whether a former servicemember is eligible for benefits are different from the criteria used by the Navy when determining a member’s characterization of service.  Accordingly, given the totality of the circumstances, the Board determined 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, 

9/2/2021


Executive Director