DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No. 1900-19 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. 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 19 March 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 and personal statement, together with all material submitted in support thereof, relevant portions of your naval record, an Advisory Opinion (AO) from a Navy mental health provider, and applicable statutes, regulations and policies. You enlisted in the Marine Corps on 23 June 1997. On 12 January 1999, you went to non-judicial punishment (NJP) for two specifications of insubordinate conduct toward a non-commissioned officer. On 28 July 1999, you received a written page 11 counseling warning (Page 11) documenting your underage drinking in violation of a base order. On 8 November 2000, you were convicted of second degree felony burglary in the Superior Court of , . The burglary occurred on or about 4 September 2000, and your possession of a knife during the burglary was an aggravating factor. On 19 December 2000, you went to NJP for your unauthorized absence during the 98 days spent in civilian incarceration, and you received a Page 11 documenting your NJP and noting that poor judgment, misconduct, and intoxication were the cause of your confinement. On 26 February 2001, you were notified that you were being processed for an administrative discharge by reason of misconduct due to the commission of a serious offense as evidenced by your guilty plea and civilian felony conviction. You expressly waived, in writing, your rights to consult with counsel and to present your case to an administrative separation board. Ultimately, on 4 May 2001, you were discharged from the Marine Corps for misconduct with an other than honorable (OTH) characterization of service and assigned an “RE-04” reentry code. On 31 July 2002, the Naval Discharge Review Board (NDRB) determined that your discharge was proper as issued and no change was warranted. The NDRB concluded your discharge characterization accurately reflected your service to your country, that you did indeed commit a serious offense, and that your discharge was equitable. Your contention that you suffered from schizophrenia while on active duty 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 practitioner (MHP) also reviewed your request for correction and provided the Board with the 10 September 2019 AO. The MHP noted that you have a diagnosis of a mental health condition. However, the MHP determined that there was insufficient evidence that you were suffering from any mental health condition during your military service. The MHP observed that your records indicated your mental health condition was diagnosed in and around September 2016, more than 15 years following your discharge. The MHP concluded by opining that there was insufficient evidence to attribute your misconduct to a service-connected mental health condition. The Board carefully weighed all potentially mitigating factors, such your contentions that included, but were not limited to: (a) you have been diagnosed with schizophrenia by doctors and have been put on Supplemental Security Income payments, (b) you believe you started having symptoms while you were in the Marine Corps and started self-medicating with alcohol, (c) that your troubles in the Marine Corps were a direct effect of alcohol and schizophrenia, (d) that you believe that your illness is service-related, and (e) schizophrenia is a mental disease that doesn’t have a time of development. Unfortunately, the Board determined these mitigating factors and contentions were not sufficient to warrant upgrading your discharge or granting any other relief in your case. 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 may have experienced and their possible adverse impact on your service. However, the Board concluded that there was no credible and convincing evidence that you suffered from schizophrenia or any other mental health conditions while on active duty, or that any such mental health conditions were related to or mitigated the misconduct that formed the basis of your discharge. Even under the liberal consideration standard, the Board determined that your misconduct was not due to schizophrenia or schizophrenia-related symptoms. Further, the Board noted the record shows you were notified of and waived your procedural rights in connection with your administrative separation. In doing so, you gave up your first and best opportunity to advocate for retention or a more favorable characterization of service. Moreover, the Board also noted that Social Security Administration (SSA) eligibility determinations for compensation and other SSA-administered benefits are for the SSA’s internal purposes only. Such SSA eligibility determinations are not binding on the Department of the Navy and any previous active duty service discharge characterizations. Lastly, the Board 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 approximately 2.0 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 willful misconduct. Accordingly, the Board determined that there was no probable material error or injustice in your discharge, and even under the liberal consideration standard, the Board concluded that your serious misconduct and disregard for good order and discipline merited your receipt of an OTH discharge. The Board also 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” (USD Memo). The purpose of the USD 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 USD 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 USD 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. Accordingly, even in light of the USD Memo, the Board still concluded that, given the totality of the circumstances, your request does not merit relief. 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.