DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAJ.. RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 4193-18 Dear This letter is in reference to your reconsideration request dated 8 May 2018. You previously petitioned the Board for Correction of Naval Records (Board) and were advised that your application had been disapproved. Your case was reconsidered in accordance with Board procedures that conform to Lipsman v. Sec y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004). 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. Consequently, your application has been denied. Because your application was submitted with new matters not previously considered, the Board found it in the interest of justice to review your application. Your current request has been carefully examined by a three-member panel of the Board for Correction of Naval Records, sitting in executive session on 31 July 2019. The names and votes of the members of the panel will be furnished upon request. 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, as well as the 20 November 2018 advisory opinion (AO). After enlisting in the Marine Corps in June 1977, you received nonjudicial punishment (NJP) for numerous infractions including unauthorized absence (UA), disobedience, disorderly conduct and assault, resisting arrest. You received an other than honorable characterization of service in April 1979 as a result of a request for discharge in Heu of trial by court-martial. As new matters, you submitted a statement explaining the legal errors contained in your discharge proceedings, records from the Social Security Administration, medical records, records from your discharge proceedings, and calendars from the relevant years of your service. You request an upgrade to your characterization of service and assert that your discharge was unjust and erroneous because of ineffective assistance of counsel, lack of a speedy trial, failure to meet the regulatory requirements set forth by the MARCORSEPMAN, and because your medical examination did not comply with regulatory requirements. You provided a personal statement about the traumatic events that transpired on 10 March 1978, and contend that after the incident you began to consume alcohol to the point of passing out. You provided civilian treatment records dated 3 May 2018, in which diagnoses of schizoaffective disorder, major depressive disorder, post-traumatic stress disorder (PTSD) and insomnia are documents. The Board reviewed your application in consideration of your contention of experiencing a significant traumatic incident in March 1978. 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 of25 August 2017. As part of the review process, a licensed clinical psychologist reviewed your assertions and the available records, and provided the Board with an AO on 20 November 2018. The AO stated that your PTSD diagnosis can be attributed to your military service and, while your UAs and absences from your place of duty could be attributed to PTSD avoidance, it is less reasonable to conclude that the other misconduct (including assault and disobedience) can be attributed to PTSD. A copy of the AO was mailed to you on 20 November 2018, and you were given 30 days in which to submit a response. When you did not provide a response within the 30-day timeframe, your case was submitted to the Board for consideration. The Board carefully reviewed your application and noted your contention that you were suffering from PTSD at the time of your misconduct, and that you struggled with alcohol following the traumatic incident you endured. The Board reviewed the AO and concurred that, while your documented PTSD could have mitigated some of the misconduct, not all of your inservice behavior could be excused by your mental health conditions. The Board found that your misconduct of assault and disobedience, coupled with your request for an other than honorable discharge in lieu of trial by court martial, supported your current characterization of service and that an upgrade was not warranted. The Board reviewed your available records in light of your assertions of ineffective legal counsel, regulatory non-compliance and timeliness, and found that you voluntarily requested an other than honorable discharge to avoid court martial, and your available records do not reflect an error or injustice with regard to regulatory procedure, either legal or medical. It is regretted that the circumstances of your reconsideration petition 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 Fonn 149. New matters are those not previously presented to or considered by the Board. In the absence of new matters for reconsideration, the decision of the Board is final, and your only recourse would be to seek relief, at no cost to the Board, from a court of appropriate jurisdiction. 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.