DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 2563-21 Ref: Signature Date Dear Petitioner: This is in reference to your application for correction of your naval record pursuant to Title 10, United States Code, Section 1552. After careful and conscientious consideration of the entire record, the Board for Correction of Naval Records (Board) found the evidence submitted was insufficient to establish the existence of probable material error or injustice. Consequently, your application has been denied. The Board determined that your personal appearance, with or without counsel, would not materially add to their understanding of the issues involved. Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record. A three-member panel of the Board, sitting in executive session, considered your application on 9 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 the 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 25 July 2018 guidance from the Under Secretary of Defense for Personnel and Readiness regarding equity, injustice or clemency determinations (Wilkie Memo). In addition, the Board considered the advisory opinion (AO) furnished by a qualified mental health professional dated 1 August 2021. You enlisted in the U.S. Navy and began a period of active duty on 11 December 1995. Your record is incomplete; however, on 29 September 1998, you underwent a separation physical examination in which the physician indicated an “attempted suicide, frequent trouble sleeping, depression or excessive worry, loss of memory or amnesia, nervous trouble, and periods of unconsciousness.” The physician also indicated you were being seen at Naval Medical Center for major depression and psychotic features since June 1998, and you were awaiting the results of a Physical Evaluation Board (PEB). Additionally, on 8 October 1998, you received non-judicial punishment. Subsequently, you were notified of pending administrative separation by reason of misconduct, specifically, commission of a serious offense, at which time, you elected not to consult with counsel and waived your procedural rights to an administrative discharge board. On 15 October 1998, you were discharged with an other than honorable (OTH) characterization of service. Your request was fully and carefully considered by the Board in light of the Secretary of Defense’s Memorandum, “Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requested by Veterans Claiming Post Traumatic Stress Disorder” of 3 September 2014 and the "Clarifying Guidance to Military Discharge Review Board and Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modification of their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment" memorandum of 25 August 2017. A qualified mental health professional reviewed your request for correction to your record and provided the Board with an AO regarding your assertions that you were misdiagnosed with depression during your military service, developed erratic behaviors due to incorrect prescriptions, and you were suffering from a mental health condition. The AO concluded that the preponderance of objective evidence indicated you exhibited symptoms and behaviors indicative of a serious mental health condition incurred during your military service, and your in-service misconduct could be mitigated by your experience of a serious 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 Wilkie Memo. These included, but were not limited to, your contentions above and the medications were inappropriate for your condition and worsened your symptoms and behaviors to the point of attempting suicide and being arrested while in a “manic phase”. In reviewing your case, the Board presumed regularity regarding your discharge from the U.S. Navy despite the lack of records pertaining to your misconduct and administrative separation proceedings. The Board noted you did not submit advocacy letters or post-service documents to be considered for clemency purposes. Based upon this review, the Board concluded there was insufficient documentation available for review to determine whether or not your misconduct was mitigated by a mental health condition. Although you were given a favorable AO by a qualified mental health professional, the Board did not concur with the AO due to the lack of available records. 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, 8/28/2021 Executive Director