DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 

Docket No:  8939-18 
Ref: Signature Date 


This 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 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 13 January 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 12 August 2019 advisory opinion (AO), furnished by a Navy mental health professional, which was previously provided to you. 
You enlisted in the Marine Corps and began a period of active duty on 28 February 1977. On 9 August 1977, your driving privileges were revoked for a period of 12 months for introducing a controlled substance onboard base.  On 22 August 1977 and 7 February 1978, you received nonjudicial punishment (NJP) for having knowledge of a violation of the Uniform Code of Military Justice and not reporting it to proper authorities and for driving under a suspension.  On 22 March 1978 and 1 August 1978, you received NJP for three days of unauthorized absence (UA), and willfully and unlawfully removing a public record (leave papers) from a duty noncommissioned officer’s desk.  On 18 December 1978, you submitted a written request for an undesirable discharge for the good of the service in order to avoid trial by court-martial for two periods of UA totaling 66 days.  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.  Subsequently, your request for discharge was granted and on 12 January 1979, you were discharged with an other than honorable (OTH) characterization of service in lieu of trial by court-martial.  As a result of this action, you were spared the stigma of a court-martial conviction, the potential penalties of a punitive discharge, and confinement at hard labor. 

You request an upgrade of your characterization of service on the basis that you suffered from a mental health condition during your military service.  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.” 

A Navy mental health professional further reviewed your request for correction to your record 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 your pre-enlistment paperwork, you acknowledged multiple arrests for running away.  You submitted a personal statement that you were suffering from symptoms of Attention Deficit Hyperactivity Disorder (ADHD) and Bipolar Mood Disorder during your military service.  No additional records were available for review.  You submitted no medical documentation of a mental health condition.  Additional, post-service medical records describing your mental health symptoms and their specific link to your military misconduct are required to render a comprehensive opinion.  However, you had a history of legal troubles prior to entering the military, and, it is more likely than not, your in-service misconduct was related to your pre-service behavior.  Based on the available information, it was opined that there is insufficient evidence to attribute your misconduct to a mental health condition incurred during military service. The Board carefully weighed all potentially mitigating factors, such as your record of service, desire to upgrade your discharge, and your contentions.  You contend that you received a Good Conduct Medal and believe that your service was honorable for all intents and purposes.  The Board also considered your assertions that at the time of your discharge, a decision was being made to either give you a medical discharge or general discharge, not an OTH discharge.  Additionally, you assert that you have been diagnosed with ADHD and Bipolar Mood Disorder and believe that you had both conditions during your service, which caused your inability to concentrate, difficulty sleeping, and restlessness.  The Board concluded these factors and assertions were not sufficient to warrant re-characterizing your discharge given your misconduct, which resulted in four NJPs, the referral of charges to a court-martial, and your request for discharge.  The Board believed that considerable clemency was extended to you when your request for discharge was approved.  Further, the Board concurred with the AO’s statement that there is insufficient evidence to attribute your misconduct to a mental health condition incurred during military service.  With regard to your contention that you received a Good Conduct Medal, please be advised that the notation on your Report of Separation from Active Duty (DD Form 214) does not show that you received a Good Conduct Medal, but only sets forth the starting date for the next period of the award, which was the date of your last NJP. 

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.