Docket No: 2543-21 
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 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).  The Board also considered an advisory opinion (AO) from a qualified mental health professional dated 2 June 2021.   
 
You enlisted in the Navy on 3 July 1974.  On 9 July 1975, you received nonjudicial punishment (NJP) for an unauthorized absence (UA) of three hours from your appointed place of duty.  On 29 October 1975, you received a second NJP for wrongful possession of marijuana.  On 20 February 1976, you received a third NJP for failure to obey an order to get a haircut and being disrespectful in your language toward a superior petty officer.  On 15 June 1976, you received a fourth NJP for UA from restriction muster.  Subsequently, you were notified of pending administrative separation action by reason of misconduct due to frequent involvement of a discreditable nature with military authorities.  You initially elected your right to an administrative discharge board (ADB) but on 25 June 1976, you entered an agreement with the commanding officer (CO) to waive your ADB and accept administrative discharge under honorable conditions.  On 15 July 1976, while pending administrative separation, you received a fifth NJP for two instances of UA.  After you waived your procedural rights, your CO recommended you be discharged with a general, under honorable conditions, characterization of service by reason of misconduct.  The discharge authority approved the CO’s recommendation and directed discharge with a general characterization of service by reason of misconduct due to a pattern of misconduct.  You were discharged on 10 August 1976.   
 
As part of the Board’s review, a qualified mental health professional reviewed your request and provided the Board with an AO on 2 June 2021.  The AO stated your in-service records do not contain evidence of a diagnosis of a mental health condition or psychological/behavioral changes that may have indicated a mental health condition.  Although you provided documentation of a post-discharge diagnosis, the AO noted you did not provide details of symptoms or the timeframe of the onset of symptoms.  The AO further noted the available information did not provide enough markers to identify a nexus with your in-service misconduct.  Based on the available evidence, the AO concluded the evidence does not establish 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 AO was provided to you on 3 June 2021, and you were given 30 days to respond.  When you did not respond in 30 days, your case was submitted to the Board for review.   
 
The Board carefully reviewed your application, weighed all potentially mitigating factors, and considered your contention that while in-service you were unknowingly suffering from a mental condition which started in childhood and for which the Navy “did nothing to investigate.”  The Board also considered your contention that the discharge status was given to you “in error” because your record of more than two years of service “does not in any way support the general discharge instead of honorable, as [you] recall.”  Lastly, the Board considered your contention that your discharge status is causing you to “miss out” on several benefits and “needs corrected.”  The Board noted you did not did not submit a statement, advocacy letters or post-service documents to be considered for clemency purposes.  Unfortunately, the Board did not find evidence of an error or injustice that warrants upgrading your characterization of service.  The Board, relying on the AO and applying liberal consideration, concluded there was insufficient evidence of an error or injustice that warrants granting clemency in the form of an upgraded characterization of service.   
 
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 desire to upgrade your discharge and your contentions discussed above.  Based upon this review, the Board concluded these potentially mitigating factors were insufficient to warrant relief.  Specifically, the Board determined your misconduct outweighed these mitigating factors.  Accordingly, given the totality of the circumstances, the Board determined that 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,                                                                       

9/5/2021


Executive Director