Docket No 2636-21 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 limitations 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 17 September 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 also considered the advisory opinion (AO) furnished by a qualified mental health provider, which was previously provided to you. Although you were afforded an opportunity to submit an AO rebuttal, you did not do so. 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. You originally enlisted in the Navy on 19 July 1988. Your pre-enlistment medical examination on 12 January 1988 and self-reported medical history noted no psychiatric or neurologic conditions or symptoms. You last reenlisted on 6 November 1996 for six years. On 27 January 1997 you were convicted by civilian authorities for disorderly conduct and paid a fine. Your performance evaluation for the period ending 15 March 1997 noted your arrest in for DUI on 26 January 1997 with a BAC of 0.17, and that the charges were dismissed after completion of the Navy’s IMPACT and PREVENT courses. On such performance evaluation you were ranked last (16 of 16) of all E-5 petty officers at your command. On 14 August 1997 you were arrested in for DUI with a BAC of 0.178. On 10 February 1998 you were convicted of this DUI in civilian court. On 11 February 1998 you were convicted of driving impaired by civilian authorities. On 12 March 1998 you were convicted by civilian authorities for larceny in the sixth degree for stealing retail merchandise (ladies clothing) from a store in On 20 March 1998 you were notified that you were being processed for an administrative discharge by reason of misconduct due to the commission of a serious offense, misconduct due to a civilian conviction, and for being an alcohol abuse rehabilitation failure by refusing to participate in a Level III alcohol rehabilitation program. You exercised your rights to consult with counsel and to waive your right to request an administrative separation board. Your separation physical examination and self-reported medical history noted no psychiatric or neurologic conditions or symptoms. In fact, you expressly stated “No” to having “depression and excessive worry” on your medical history. Ultimately, on 15 April 1998 you were discharged from the Navy for misconduct with an other than honorable (OTH) characterization of service and assigned an RE-4 reentry code. As part of the Board review process, the BCNR Physician Advisor who is a licensed clinical psychologist (Ph.D.), reviewed your contentions and the available records and issued an AO dated 23 July 2021. The Ph.D. initially noted that your active duty records did not contain evidence of a mental health diagnosis. The Ph.D. noted that while you contended you developed depression on active duty, you did not provide a description of your symptoms or how such symptoms affected your ability to perform your duties. The Ph.D. also noted that misconduct such as larceny would not be typical misconduct attributed to a mental health condition. 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 in-service 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 Kurta, Hagel, and Wilkie Memos. These included, but were not limited to you contentions that: (a) you were in the Navy for almost ten years and had honorable discharges after your first and second enlistments; (b) you have two Navy Achievement Medals and were Sailor of the Year at (c) you were depressed after your family left you after receiving orders back to ; (d) depression set in and you began to drink alcohol; and (e) you lost your GI Bill benefits. However, given the totality of the circumstances, the Board determined that your request does not merit relief. In accordance with the Kurta, Hagel, 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 convincing evidence that you suffered from any type of mental health condition while on active duty, or that any such mental health condition was related to or mitigated the misconduct that formed the basis of your discharge. As a result, the Board concluded that your misconduct was not due to mental health-related symptoms. Moreover, the Board observed that you did not submit any clinical documentation or treatment records to support your mental health claims despite a request from BCNR on 4 May 2021 to specifically provide additional documentary material. The Board determined the record clearly reflected that your active duty misconduct was intentional and willful and demonstrated you were unfit for further service. The Board also determined that the evidence of record did not demonstrate that you were not mentally responsible for your conduct or that you should otherwise not be held accountable for your actions. The Board also observed that character of military service is based, in part, on conduct and overall trait averages which are computed from marks assigned during periodic evaluations. Your overall active duty trait average in conduct was 1.50. Navy regulations in place at the time of your discharge required a minimum trait average of 2.0 in conduct (proper military behavior), for a fully honorable characterization of service. The Board concluded that your conduct marks during your active duty career were a direct result of your pattern of serious misconduct which further justified your OTH characterization of discharge. Additionally, the Board 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. The Board did not believe that your record was otherwise so meritorious as to deserve a discharge upgrade and determined that Sailors should receive no higher discharge characterization than is due. The Board determined that characterization under OTH conditions is appropriate when the basis for separation is the commission of an act or acts constituting a significant departure from the conduct expected of a Sailor. Lastly, absent a material error or injustice, the Board declined to summarily upgrade a discharge solely for the purpose of facilitating VA benefits, or enhancing educational or employment opportunities. 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. 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 pattern of serious misconduct clearly merited your receipt of an OTH. 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, 10/4/2021 Executive Director