DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 1418-19 Ref: Signature Date Dear : 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. 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. A three-member panel of the Board, sitting in executive session, considered your application on 16 June 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 11 December 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 8 September 1987. On 4 October 1988, you were convicted by summary court-martial (SCM) of discharging your rifle on post. On 6 September 1989, you received nonjudicial punishment (NJP) for disobedience of a lawful order. On 9 May 1990, you were counseled concerning your deficiencies in your performance and frequent involvement with military authorities. On 8 March 1990, you were convicted by special court-martial (SPCM) of wrongful use of cocaine and two specifications of failing to go to your appointed place of duty. On 4 June 1990, you received NJP for being absent from your appointed place of duty. On 3 August 1990, you were notified of administrative discharge action for a pattern of misconduct. After being afforded your procedural rights, you elected to waive your right to request that your case be heard by an administrative discharge board. On 8 August 1990, you received NJP for larceny. Your case was forwarded to the separation authority, and on 6 October 1990, the separation authority directed that you receive an OTH discharge due to a pattern of misconduct. On 19 October 1990, you were discharged from the Marine Corps with an OTH characterization of service. 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 you were suffering from a mental health condition. The AO noted that, during your military service, you were diagnosed with an Adjustment Disorder with Disturbance of Conduct (in remission) and returned to full duty. You provided no additional medical records or evidence. The AO concluded that, based on the available evidence, there is insufficient evidence of a mental health condition attributable to your military service that may have mitigated your misconduct. The Board carefully weighed all potentially mitigating factors, such as your record of service and desire to upgrade your discharge. The Board also considered your assertions that you disputed the positive results for cocaine use, and that the command asked you to cooperate or you would go to a court-martial, but you stated that you would prove your case in court. The Board concluded these factors and assertions were not sufficient to warrant an upgrade in the characterization of your discharge given your misconduct, which resulted in a SPCM conviction, a SCM conviction, and three NJPs, and the fact that you were counseled and warned of the consequences of further misconduct. Further, the Board concurred with the AO that there is insufficient evidence of a mental health condition attributable to your military service that may have mitigated your misconduct. 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.