Docket No: 5511-19 Ref: Signature Date MR Dear Mr. : This letter is in reference to your reconsideration request dated 29 May 2019. You previously petitioned the Board for Correction of Naval Records (Board) twice and were advised that your applications had both 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. 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 for Correction of Naval Records, sitting in executive session, considered your application on 30 October 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, an Advisory Opinion (AO) from a qualified mental health provider, and applicable statutes, regulations and policies. 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 27 August 1980. On 3 July 1982 you received a “Page 11” counseling entry (Page 11) documenting being counseled on the current USMC policy concerning illegal drug usage and the legal/administrative actions that may result from such use. On 27 January 1983 you received a Page 11 counseling warning for your lack of professionalism in performing your assigned truck driver duties. On 9 November 1983 you received non-judicial punishment (NJP) for unauthorized absence (UA). On 31 January 1984 you received a Page 11 counseling warning documenting unacceptable personal conduct and behavior, and for “creating offense among others, a poor attitude and cooperation.” The Page 11 expressly warned you that a failure to take corrective action may result in disciplinary or administrative action. On 7 May 1984 you recieved NJP for the wrongful use of a controlled substance (marijuana) and for using insulting and obscene language towards a female Marine. On 11 May 1984 you were provided notice that you were being administratively processed for separation from the Marine Corps by reason of misconduct due to drug abuse. You elected in writing to waive your rights to consult with counsel and to request a hearing before an administrative separation board. On 15 May 1984 the Staff Judge Advocate for the separation authority determined your administrative separation was legally and factually sufficient. Ultimately, on 18 May 1984 you were discharged from the Marine Corps for drug use with an other than honorable conditions (OTH) characterization of service and assigned an RE-4 reentry code. Your contention that you suffered from post-traumatic stress disorder (PTSD) 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. As part of the Board review process, the BCNR Physician Advisor, who is a medical doctor and Fellow of the American Psychiatric Association (MD), reviewed your contentions and the available records and issued an AO dated 17 September 2020. The MD concluded by opining that there was insufficient evidence that you suffered from PTSD at the time of your military service, or that your in-service misconduct is attributable to PTSD or other mental health conditions. The Board carefully weighed all potentially mitigating factors, such your contentions that included, but were not limited to: (a) as a young Marine suffering from PTSD you did inhale some marijuana because you were depressed over the Marines killed in ; (b) you were almost killed in the by three people who slipped something in your coffee; (c) in the 1980s the Marine Corps policy was three positive urine tests and you’re out and you only had one; and (d) you were told by your chain of command that if you signed certain documents to get out you will receive an honorable discharge in six months. However, the Board concluded these mitigating factors and contentions were not sufficient to warrant upgrading your discharge characterization or granting any other relief. 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 and their possible adverse impact on your service. However, even under the liberal consideration standard, the Board concluded that there was no nexus between any PTSD and/or PTSD-related symptoms and your misconduct, and determined that there was insufficient evidence to support the argument that any such mental health condition mitigated the misconduct that formed the basis of your discharge. Even under the liberal consideration standard, the Board concluded that your misconduct was not attributable to PTSD or PTSD-related symptoms. The Board noted, contrary to your contention, that there is no convincing evidence in the record regarding any promises of an honorable discharge in six months following your separation. Moreover, the Board observed that the rights acknowledgement form you signed in conjunction with your separation is a standard form and makes no mention whatsoever of an automatic six-month upgrade. Further, the Board noted that there is no provision of federal law or in Navy/Marine Corps regulations that allows for a discharge to be automatically upgraded after a specified number of months or years. The Board also noted that the evidence of record did not demonstrate that you were not mentally responsible for your conduct or that you should not be held accountable for your actions. The Board observed 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. Additionally, absent a material error or injustice, the Board generally will not summarily upgrade a discharge solely for the purpose of facilitating VA benefits, or enhancing educational or employment opportunities. Accordingly, the Board determined that there was no impropriety or inequity in your discharge. 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” (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 (BCM/NR) “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. However, 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 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. Sincerely,