Docket No: 3035-21 
                        

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 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 Readiness (Kurta Memo).  A three-member panel of the Board, sitting in executive session, considered your application on 27 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, 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 considered the advisory opinion (AO) furnished by qualified mental health provider dated 14 August 2021, which was previously provided to you.  Although you were afforded an opportunity to submit a rebuttal, you did not do so. 
 
You enlisted in the United States Navy (USN) and began a period of active duty on 27 November 1984.  On 9 September 1985, an administrative remark in your record documented you were accelerated advanced to E-4.  On 5 April 1986, you received non-judicial punishment (NJP) for leaving your appointed place of duty, contempt/disrespect, and failure to obey a lawful order.  On 19 May 1986, you were issued a counseling warning stating you were being retained in the USN but advising you that further deficiencies in your performance and/or conduct might result in disciplinary action and processing for administrative separation.  On 28 October 1986, you received a second NJP for willful disobedience and dereliction of duty.  On 10 November 1986, an administrative remark entry documented you were not recommended for advancement or retention due to your totally negative attitude and unsatisfactory performance.  On 14 November 1986, you received another administrative entry acknowledging you were not recommended for advancement due to your totally negative attitude, unsatisfactory professional performance and negative influence on your Shipmates.  This entry further stated your performance and attitude towards the Navy, your ship, and your job have deteriorated to the point where you were a liability to your command.  It further stated that your outright refusal to work in your assigned rate as a watch stander and maintenance man had caused undue hardship on an already severely undermanned work force.  On 25 November 1986, you received a third NJP for failing to go to or leaving your place of duty and dereliction in the performance of your duties.  On this date you were also notified of pending administrative separation by reason of misconduct, specifically, a pattern of misconduct as evidenced by your multiple NJPs, at which time, you waived your procedural rights to an administrative discharge board.  In January 1987, the discharge authority directed you be discharged with an other than honorable (OTH) characterization of service by reason of pattern of misconduct.  On 5 February 1987, you were discharged with an OTH. 
 
As part of the Board’s review, a qualified mental health professional reviewed your request for correction to your record and provided the Board with an AO regarding your assertion that you: (1) were hazed and assaulted by your peers and superiors; (2) the amount of time you spent in the boiler room was not in regulation with the required ‘out of the boiler room’ time; (3) you had been on watch since midnight and were not relieved for chow so you left your post; (4) your evaluations were an average of 3.8 until you refused to allow injustice to occur and that; (5) the order to report to your work station, that you refused, was not lawful because you were in a liberty status.  The AO noted your in-service record did not contain evidence of a diagnosis of a mental health condition or indicate behavioral markers attributable to a mental health condition.  The AO opined the preponderance of available evidence failed to establish you exhibited behaviors associated with victims of military sexual trauma or that your in-service misconduct could be attributed to 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 Wilkie memo.  These included, but were not limited to, your contentions noted above.  The Board viewed your allegations with serious concern.  However, this Board is not an investigating agency nor does it have the resources to investigate unsubstantiated allegations.  The Board also noted you did not submit character letters or post-service documents to be considered for clemency purposes.  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.  Additionally, the Board concurred with the AO.  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 the 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, 
								  10/7/2021
								  Executive Director