DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 10540-18 Ref: Signature Date This letter 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 that the evidence submitted was insufficient to establish the existence of probable material error or injustice. Consequently, your application has been denied. Although your application was not filed in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your application on its merits. A three-member panel of the Board, sitting in executive session, considered your application on 4 March 2020. The names and votes of the members of the panel 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, as well as applicable statutes, regulations, and policies. In addition, the Board considered the previously provided 7 June 2019 advisory opinion (AO) furnished by a qualified mental health professional. You enlisted in the Marine Corps and began a period of active duty on 9 March 1966. On 4 May 1967, you submitted a voluntary statement to the Naval Investigative Service regarding your involvement in homosexual acts. On 6 May 1967, you submitted a written request for an undesirable discharge for the good of the service in order to avoid trial by court-martial for 108 days of unauthorized absence (UA), possession of alcoholic beverages in the barracks, committing homosexual acts, and assaulting a fire watch who was in the performance of his duties. Prior to submitting this request for discharge, you conferred with a qualified military lawyer, were advised of your rights, and warned of the probable adverse consequences of accepting such a discharge. As part of your request, you admitted your guilt in writing to the foregoing offenses. Subsequently, your request for discharge was granted and on 8 June 1967, you received an other than honorable discharge to escape trial by court-martial. As a result of this action, you were spared the stigma of a court-martial conviction and the potential penalties of a punitive discharge and confinement at hard labor. Your request was fully and carefully considered by the Board in light of the Secretary of Defense’s 3 September 2014 memorandum, “Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requested by Veterans Claiming Post Traumatic Stress Disorder,” the 25 August 2017 memorandum, “Clarifying Guidance to Military Discharge Review Boards 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,” and the 25 July 2018 memorandum, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations.” As part of the review process, a qualified mental health professional reviewed your request and provided the Board with an AO regarding your assertion that you were suffering from a mental health condition during your service. The AO noted that in March 1967, you were evaluated by a military psychiatrist who noted that your period of unauthorized absence was “initiated by an exaggerated fear of excessive punishment due to a forbidden journey to and diagnosed you as having a passive-dependent personality. In your current request for review, you submitted a personal statement that you were physically assaulted during your military service and began drinking to cope with it. You also stated that you were experiencing depression at the time of your discharge. The AO determined that, unfortunately, you provided no post-service medical records indicating a mental health diagnosis. The AO further determined that additional records, such as post-service treatment records describing your mental health diagnosis and the specific relationship between your diagnosis and your military misconduct, are required to render an alternate opinion. Based on the preponderance of the evidence, it was opined that there is insufficient evidence to attribute your misconduct to a mental health condition. The Board carefully weighed all potentially mitigating factors, such as your record of service, desire to upgrade his discharge, you had an affair with a member of the same sex and received an OTH discharge for it. The Board also consider your assertions that at the time of your discharge, you suffered from depression, that you were physically assaulted, and turned to drinking, you have been sober for 27 years, and post-service accomplishments. However, the Board concluded that these factors and assertions were insufficient to warrant changing your characterization of service given your misconduct, which resulted in the referral of charges to a court-martial, and your request for discharge to escape those charges. The Board believed that considerable clemency was extended to you when your request for discharge was approved. Further, the Board concurred with the AO statement that that there is insufficient evidence to attribute your misconduct to a mental health condition. 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 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, 4/4/2020