DEPARTMENT OF THE NAVY

BOARD FOR CORRECTION OF NAVAL RECORDS
7015S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490

 

ow IN

Docket No 5085-14
3821-12

12 December 2014

 

This is in reference to your application
naval record pursuant to the provisions
ic By

tates Code, section 1552.

or correction of your
title 10 of the United

FRA

  

  

   

Pursuant to the U.S. Court of Federal ims order in the case of
Russell J. Young v. United States, No. 14-528C, a three-member
panel of the Board for Correction of Naval Records, sittina in
executive session, considered your application on 18 November
2014. The court order directed the Board to consider your
application “in accordance with the supplemental guidance issued
by the Secretary of Defense to military correction boards
regarding the treatment of disc! upgrade requests by veterans
claiming Post-Traumatic Stress rder (PTSD) .”
Your al ce v revie

accorda tions and pro

applica Board Docu

material sted of your

applica econsideration case,
togethe in support thereof, your
naval r statutes, regulations, and policies.
After careful and conscientious consideration of the entire
record, the Board found the evidence submitted was insufficient
to establish the existence of probable material error or
injustice. The names and votes of the members of the panel will
be furnished upon request. :

You enlisted in the Navy and began a period of active dutv on

20 March 1987 You served without incident until 12 December
1990, when you were convicted by general court-martial (GCM) of
54 days of unauthorized absence, and 59 specifications of
uttering bad checks with intent to defraud. You were sentenced
to confinement, a reduction in paygrade, a forfeiture of pay, and
a bad conduct discharge (BCD) You received the BCD on 3 March
1992, after appellate review was completed
Ce eae eV

The Secretary of Defense memorandum of September 3, 2014,
“Supplemental Guidance to Military Boards for Correction of
Military/Naval Records Considering Discharge Upgrade Requests by
Veterans Claiming Post Traumatic Stress Disorder” directs the
Board to fully and carefully consider every petition based on
PTSD to include a comprehensive review of all materials and
evidence provided by the petitioner. The memo requires special
consideration of Department of Veterans Affairs (VA)
determinations of PTSD and, if reasonably determined to have
existed at the time of discharge, to be considered as a potential
mitigating factor in the misconduct that caused the under other
than honorable characterization of service.

The Board, in its review of your entire record and applications,
carefully weighed all potentially mitigating factors, such as
your record of ‘service, desire to upgrade your discharge, your
youth at the time of the offenses, the other matters you
requested the Board consider in your request for reconsideration
that we received on 22 April 2014, and the court order remanding
your case for further review. It also considered your assertions
of PTSD and that your belief that the disorder was not taken into
consideration during your court-martial conviction. In this
regard, the Board noted that you provided a diagnosis of PTSD
administered by the Department of Veterans Affairs.

As directed by the Secretary’s memorandum, the Board provided
special consideration of the VA’s determination of PTSD and
provided you the benefit of the doubt by considering the
existence of PTSD as a mitigating factor in the misconduct for
which you were discharged and awarded a BCD.

After consideration of the evidence, the Board concluded that
your misconduct was premeditated and that the PTSD was not the
causal factor in your extended unauthorized absence or 59
separate instances of uttering bad checks; it could not find any
causal link between the PTSD and the misconduct based on the
evidence. After making that determination, the Board considered
the existence of the PTSD as a mitigating factor in your
misconduct. In their opinion, the severity of the long period of
unauthorized absence combined with the large number of bad checks
you wrote substantially outweighed the mitigation provided by the
existence of PTSD.

As you requested in your letter seeking reconsideration, the
Board reviewed the record of trial in your case and found that
you were represented by counsel and that you entered into and
received the benefit of a pretrial agreement. In fact, the
record reveals that at the time, you wanted to get out of the
Navy and valued limiting any term of confinement more than
avoiding a BCD. You and your counsel negotiated a pre-trial
agreement in which you agreed to a nine month cap on confinement
but agreed to receive any punitive discharge that the court may
adjudge. During the sentencing phase of your court-martial, your
attorney argued on your behalf that you wanted out of the Navy
and asked the military judge to limit any confinement to “four or
five months” if he awarded a BCD. The military judge awarded a
period of confinement for 12 months, reduction to the paygrade of
E-1, forfeiture of $482.00 a month for 12 months and a BCD.
Pursuant to the pre-trial agreement the convening authority
reduced your term of confinement to nine months.

The Board considered carefully your assertion that the GCM
overlooked the possibility that you had PTSD, but its review of
the court transcript did not find any instance where you or your
counsel either claimed or presented evidence that you had PTSD.
Per your request, the Board considered the emotional stressors
you experienced during your period of unauthorized absence, and
note that you and your counsel did mention some of those
stressors to the military judge during your court-martial.
However, the Board did not find sufficient evidence to disagree
with the court’s conclusion that the severity of your misconduct
outweighed those mitigating factors.

Finally, you fault your GCM for not considering that you were
separated from your wife during your period of unauthorized
absence and that she died in 1991 during the eruption of the
Mount Pinatubo volcano in the Philippines. The Board’s review of
the record of trial revealed that you did present evidence of
your marital trouble and separation to the military judge but
further testified during sentencing that you intended to divorce
your wife after you left the Navy and resume your relationship
with your girlfriend. The Board also noted that your court-
martial took place on 12 December 1990 while Mount Pinatubo
erupted in June of 1991. The GCM could not have considered your
wife’s tragic death because it had not yet happened.

The Board further considered your assertion of an improperly
conducted appellate review of your GCM. The Board concluded that
the appellate review was properly conducted. In this regard, the
Board considered evidence that on 12 December 1990, you Signed a
special power of attorney that appointed your appellate defense
counsel to represent you before the Court of Criminal Appeals.

Based on the information currently contained in your record, the
Board concluded insufficient evidence exists to warrant changing
your characterization of service or narrative reason for
discharge given the seriousness of your misconduct. Accordingly,
your application has been denied.
It is regretted that the circumstances of your case are such that
favorable action cannot be taken. You are entitled to have the
Board reconsider its decision upon submission of new and material
evidence within one year from the date of the Board’s decision.
New evidence is evidence not previously considered by the Board

prior to making its decision in your case. 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.

Sincerel

   

ROBERT J. O’NEILLL
Executive Director