DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 4852-18 Ref: Signature date Dear 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 31 July 2019. 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 20 May 2019 advisory opinion (AO) furnished by a Navy mental health professional, your undated rebuttal to the AO, and the 23 May 2019 updated AO dated 23 May 2019, which is enclosed. The updated AO was provided to you on 30 May 2019, and you were given 30 days in which to submit a response. When you did not provide a response, your case was submitted to the Board for consideration. You enlisted in the Marine Corps and began a period of active duty on 22 May 1978. On 19 December 1978 and 20 March 1979, you were counseled concerning your marginal performance of duty, attitude, hostility towards authority, and frequent involvement with military authorities. On 25 May 1979, you submitted a request to be discharged with an other than honorable (OTH) characterization of service for the good of the service (GOS) in order to avoid trial by special court-martial (SPCM). Your request was denied and, on 31 May 1979, in accordance with your pleas of guilty, you were convicted by SPCM of larceny and neglectfully destroying military property. You were sentenced to confinement at hard labor, forfeitures of pay, a reduction in paygrade, and to be discharged from the naval service with a bad conduct discharge (BCD). On 26 June 1979, the convening authority suspended the BCD and a portion of your forfeitures of pay for the period of your confinement and six months thereafter. For months later, on 12 October 1979, you received nonjudicial punishment (NJP) for failing to obey a lawful order. On 16 October 1979, you were counseled concerning your failure to strictly comply with the provision of your restriction as adjudged at your previous NJP. On 20 March 1980, you received NJP for failing to go to your appointed place of duty. On 9 April 1981, you were convicted by summary court-martial (SCM) of being absent from your appointed place of duty, disobedience of a lawful order from a commissioned officer, and leaving your post before being properly relieved. On 19 May 1981, administrative discharge action was initiated to separate you from the Marine Corps for misconduct due to your frequent involvement with military authorities. You were advised of, and waived, your procedural rights, including your right to request that your case be heard before an administrative discharge board. Your commanding officer recommended that you be discharged from the naval service. Your case was forwarded to the separation authority, and on 26 June 1981, it was directed that you be discharged with an other than honorable (OTH) characterization of service due to misconduct due to your frequent involvement with military authorities. On 21 July 1981, you were so discharged. 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,” of 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.” On 5 May 2019, you submitted as additional information, a “Veteran’s Disability Report” stating, in part, that you are experiencing secondary to military service, specific acts thereby, trauma and abuse, symptoms of secondary Depression, Anxiety, Social Avoidance and elements of post-traumatic stress disorder (PTSD). As part of the review process, a Navy mental health professional reviewed your request and provided the Board with the 20 May 2019 AO regarding your assertion that you were suffering from a mental health condition during your service. The AO noted, in part, that you submitted no evidence of a mental health condition, aside from your statement. The AO opined that, while it is very likely that the family stressors you described would result in stress, different individuals react to stress in different ways and not all develop a mental health condition as a result. In-service, medical providers conceptualized your emotional difficulties as due to a temporary adjustment reaction and your characterological traits. The AO noted that additional records, such as post-service medical records describing your mental health diagnosis, and the specific link between your diagnosis and behavior, were required to render an alternate opinion. The AO determined that, at that time, it was difficult to consider how your misconduct and poor performance, which varied over the course of more than a year, should be attributed to a mental health condition that you incurred due to the stress of you wife’s pregnancy and miscarriage around February to April 1981. Based on the preponderance of the evidence, the AO opined that there was insufficient evidence to attribute your misconduct to a mental health condition. In response to the AO, you provided a rebuttal letter from a civilian psychologist that states, in part, that you were found to have multiple confirmations of characteristics defined by the diagnosis of specified trauma and stress-related disorder related to physical assault in military service, arbitrary disciplinary procedures, loss of child-pregnancy, and a sense of unfair, unsubstantiated legal charges, generalized anxiety disorder, social anxiety, persistent depressive disorder, dysthymia, and late onset with recurrent major depressive episode, moderate to severe. In response to your rebuttal, the same naval mental health professional provided the 23 May 2019, updated AO. That update states, in part, that that you had a trauma-related mental health diagnosis that can be attributed to military service. However, there is no additional clinical information submitted regarding your misconduct and military service. While the narrative provided to your civilian provider is consistent with the narrative provided in your petition to this Board, that same narrative is not consistent with the timeline for your misconduct in your military service record. Your April 1981 SCM conviction occurred following the loss of the child, so the UA and disobedience associated with that court-martial could be conceptualized as symptoms of your trauma-related mental health concern. However, you had been formally counseled on three prior occasions, and received two nonjudicial punishments (NJP) and one SPCM conviction, prior to the death of your child. In your recent disability evaluation, you attributed these disciplinary procedures to arbitrary measures by your leadership. However, in- service, you were determined to experience characterological traits, which likely interfered with your ability to realistically consider your own behavioral role in the disciplinary proceedings. The updated AO determined that, based on the preponderance of the evidence, the majority of your misconduct cannot be attributed to a trauma-related mental health condition. The Board carefully weighed all potentially mitigating factors in your case, including your record of service, desire to upgrade your discharge, and that you believe your OTH discharge should be changed to a medical discharge. The Board considered your contention that being discharged due to a personality disorder was a mistake, as many issues have arisen throughout your lifetime, and that the Marine Corps was ignoring its responsibility to treat you for a condition it caused. The Board also considered your assertions that that you did not steal any stereo equipment, that you were set up by other Marines that did not like you, that you were physically and emotionally attacked, and bullied most of the time will living in the barracks. The Board also considered your contentions that there were other accusations which lead to charges being put on you that were unjust, that your wife was pregnant and having abdominal pain, that you called your First Sergeant and explained what was going on at the time, and that you later found out that your wife had lost your baby. You also asserted that your wife was emotionally unstable and that you did want the doctor told you, which was to take her home and keep her calm for a few days, that you called and left messages on your First Sergeant’s phone, and stayed with your wife until you got back to your unit to find out you were listed as absent without leave. However, the Board concluded that these factors and assertions were insufficient to warrant changing your characterization of service given your misconduct which resulted in SPCM and SCM convictions, two NJPs, and the fact that you were counseled on more than one occasion of the consequences of further misconduct. Further, the Board concurred with the AO’s statement 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.