Docket No: 9408-18 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 that 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 BCNR, sitting in executive session, considered your application on 7 April 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 and applicable statutes, regulations and policies. In addition, the Board considered the advisory opinion (AO) furnished by a Navy mental health professional dated 26 August 2019, which was previously provided to you. You enlisted in the Marine Corps and began a period of active duty on 19 July 1976. During the period from 30 July 1976 to 8 June 1978, you received four nonjudicial punishments (NJPs) for five instances of being disrespectful, and two periods of unauthorized absence (UA) totaling seven days. On 5 September 1978, you were convicted by special court-martial (SPCM) of two specifications of UA totaling six days, disobedience, and assault. You were sentenced to confinement at hard labor and a reduction in paygrade. On 17 April 1979, you received NJP for three periods of UA and disobedience. On 5 September 1979, you were convicted by a second SPCM of two specifications of UA. You were, sentenced to confinement at hard labor, a forfeiture of pay and a bad conduct discharge (BCD). On 7 November 1979, the convening authority suspended your BCD for the period of your confinement, and for one year thereafter. On 10 October 1980, you submitted a written request for an undesirable discharge for the good of the service in order to avoid trial by court-martial for 47 days of UA. Prior to submitting this request for discharge, you conferred with a military lawyer, were advised of your rights, and warned of the probable adverse consequences of accepting such a discharge. On 17 October 1980, a Staff Judge Advocate reviewed your case and forwarded it to the separation authority recommending that your request be denied, and to vacate your suspended BCD from your 5 September 1979, SPCM. On 20 October 1980, the separation authority denied your request. Based on your Certificate of Release or Discharge from Active Duty (DD Form 214), the BCD you received as a result of your 5 September 1979, SPCM was vacated and ordered executed. You were discharged on 6 May 1981, with a BCD. 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 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 Navy mental health professional further reviewed your request for correction to your record and provided the Board with an AO regarding your assertion you were suffering from PTSD during your service. The AO noted that in May 1978, you were referred by your command for an evaluation by a military psychiatrist. The AO noted that you were not diagnosed with mental illness but your mental health concerns were characterized as “situational adjustment reaction to adult life (specifically to your role as being a father and to your wish to become a Marine).” The AO also noted that you have submitted no medical documentation of a mental health diagnosis. The AO concluded that there is insufficient evidence to attribute your misconduct to a mental health condition incurred in or suffered during military service. The Board carefully weighed all potentially mitigating factors, such as your record of service, and desire to upgrade your BCD. The Board also considered your assertions of medical impairments or extenuating circumstances that you were unaware of at the time, thus permitting Veterans medical care and benefits. Additionally, that you believe that contaminated water and/or misdiagnosed Bipolar disorder, were the cause of your behavior problems. You also believe that you were held past your End of Active Service (EAS) date, your DD 214 is erroneous, and your belief that medical problems may be raised as mitigation in discharge or court-martial proceedings to avoid OTH or punitive discharges. The Board concluded these factors and assertions were not sufficient to warrant recharacterization of your discharge given your five NJPs, SPCM convictions, and the fact that you were given an opportunity for retention and to earn a better characterization of service, when your sentence of a BCD from you second SPCM was suspended for one year after your confinement at hard labor. Concerning your assertions of suffering from medical impairments or extenuating circumstances, there is no evidence in the record to support it, and you submitted no such evidence. Please be advised that servicemembers may not be involuntarily held past their EAS date for the purpose of administrative separation processing. Servicemembers may be involuntarily held past their EAS for pending court-martial proceedings. Additionally, Marine Corps directives allow for the adjustment of a Marines EAS date to account for lost time. The Board believes that both time lost and pending court-martial were the reason you were held past your original EAS. Your original EAS would have been adjusted to a later date based on your UA periods (Time Lost) and pending legal action. Your EAS does not amount to an error or injustice, and fails to overcome the presumption of regularity that Marine Corps officials failed in their responsibilities to properly separate you. As for your referral to the disability system, based on the overall separation, the Marine Corps acted properly, and the BCD would have taken precedence. Additionally, the Board agreed with the AO that there is insufficient evidence to attribute your misconduct to a mental health condition. In regard to your assertion that were exposed to toxic water. The Board noted that Public Law 112-154, Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, requires the Veterans Administration to provide health care to Veterans with one or more of 15 specified illnesses or conditions. You should contact the nearest office of the Department of Veterans Affairs concerning your right to apply for benefits or appeal an earlier unfavorable determination. 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 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.