DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 5157-18 Ref: Signature Date Dear This letter is in reference to your reconsideration request dated 13 June 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. A three-member panel of the Board, sitting in executive session, considered your application on 8 August 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, and applicable statutes, regulations, and policies, as well as the enclosed 13 December 2018 advisory opinion (AO) from a qualified Navy mental health provider, which was previously provided to you. Although you were afforded an opportunity to submit a response, you did not do so. Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to their understanding of the issues involved. Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record. You enlisted in the Marine Corps on 20 August 1990. On 30 April 1991, you received a written Page 11 entry counseling you for failing to follow basic regulations and your poor attitude towards your responsibilities as a Marine. On 26 June 1991, you received a Page 11 entry for your lack of bearing and poor initiative. On 29 June 1991, you received a Page 11 entry for dereliction of duty by sleeping at your assigned post on a field exercise. On 11 September 1991, you received non-judicial punishment (NJP) for failing to obey a lawful order or regulation, in violation of Article 92, Uniform Code of Military Justice (UCMJ), and insubordinate conduct in violation of Article 91, UCMJ. On 26 September 1991, you received a Page 11 entry documenting suspension of your on-base driving privileges for two months. On 8 November 1991, you received a Page 11 entry for unprofessional conduct while standing guard by showing complete disrespect to your company executive officer. On 10 December 1991, you received a Page 11 entry for negligent management of your personal finances. On 27 May 1992, you received a Page 11 entry documenting that you were eligible but not recommended for promotion due to your lack of leadership abilities and maturity. On 29 October 1992, you received a Page 11 entry for your lack of professionalism, leadership, judgment reliability, obedience, self-discipline, and military bearing. On 12 February 1993, you received a Page 11 entry for your lack of professionalism and disregard for authority by giving a Somali child a beverage powder mixed with urine. On 22 April 1993, you received a Page 11 entry documenting your lack of professionalism, self-discipline, and judgment. On 21 May 1993, you received a Page 11 entry for negligently discharging your weapon. On 10 June 1993, you received NJP for insubordinate conduct for disrespectful language toward a noncommissioned officer, in violation of Article 91, UCMJ. On 30 June 1992, you were reduced to paygrade private first class (PFC)/E-2 for professional incompetence. On 3 August 1993, you received NJP for two instances of failing to obey a lawful order or regulation, in violation of Article 92, UCMJ. On 9 August 1993, you were notified that you were being processed for an administrative discharge by reason of misconduct due to minor disciplinary infractions and misconduct due to a pattern of misconduct. On 11 August 1993, you consulted with qualified counsel and initially elected to retain certain rights, but on 8 September 1993, you waived your right to present your case to an administrative separation board. Ultimately, on 1 October 1993, you were discharged from the Marine Corps with an other than honorable (0TH) characterization of service. Your contention that you suffered from a mental health condition on active duty was fully and carefully considered by the Board in light of the guidance provided by 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 of 25 August 2017. A qualified Navy mental health provider (MMHP) also reviewed your request for correction and provided the Board an AO on 13 December 2018. The MMHP noted that you did not submit any post~service treatment or clinical records to support your mental health claim. The MMHP concluded that there is insufficient evidence to attribute a mental health condition to military service, and your misconduct to a mental health condition. The Board carefully weighed all potentially mitigating factors, such as the contentions and arguments outlined in your petition, your detailed personal statement, and your lawyer's cover letter. In accordance with the published guidance, the Board gave liberal and special consideration to your record of service, and your contentions about any traumatic or stressful events you experienced while growing up and on active duty, and their possible adverse impact on your service. However, even under the liberal consideration standard, the Board concluded that there was no evidence that you suffered from PTSD or any type of mental health condition on active duty, or that any such mental health condition was related to or mitigated the misconduct that formed the basis of your discharge. Further, the Board noted the record shows you were notified of and voluntarily waived your procedural rights in writing in connection with your administrative separation. The Board also noted that character of military service is based, in part, on conduct and overall trait averages, which are computed from marks assigned during periodic evaluations. Your overall active-duty trait average was 3.7 in conduct. Marine Corps regulations in place at the time of your discharge required a minimum trait average of 4.0 in conduct (proper military behavior) for a fully honorable characterization of service. The Board concluded that your conduct marks during your active-duty career were a direct result of your misconduct and overall substandard performance, which ultimately supported the separation authority's decision to discharge you with an 0TH characterization of service. Accordingly, the Board determined that there was no error or injustice in your discharge, and even under the liberal consideration standard, the Board found that your disregard for good order and discipline and repeated serious misconduct merited your discharge with an 0TH characterization of service. Additionally, the Board reviewed your application under the recent guidance provided in the Under Secretary of Defense's memorandum dated 25 July 2018 entitled, "Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations" (USO Memo). The purpose of the USO Memo is to ease the process for Veterans seeking redress and assist Boards for Correction of Military/Naval Records "in determining whether relief is warranted on the basis of equity, injustice, or clemency." The USO Memo noted that "increasing attention is being paid to ... the circumstances under which citizens should be considered for second chances and the restoration of rights forfeited," and that "BCM/NRs have the authority to upgrade discharges or correct military records to ensure fundamental fairness. The USO Memo sets clear standards and principles to guide BCM/NRs in application of their equitable relief authority, and further explains that boards shall consider a number of factors to determine whether to grant relief. The board applauds your post-service conduct and accomplishments, and acknowledges your character as reflected in the letters submitted on your behalf. However, even in light of the USO Memo, the Board still concluded that, given the totality of the circumstances and your pattern of misconduct, your request does not merit relief. Finally, your contention that you received bad advice from your military lawyer is unsupported. The Board noted that there is no evidence in your record, and you submitted none, to support your contention that you did not receive adequate representation or that you experienced ineffective assistance of counsel. The Board relies on a presumption of regularity to support the official actions of public officers and, in the absence of substantial evidence to rebut the presumption, to include evidence submitted by a petitioner, the Board presumes that you were properly processed for separation and discharged from the Marine Corps. 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 Form 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.