Docket No: 6983-19 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 relevant portions of your naval record and your application, 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 for Correction of Naval Records, sitting in executive session, considered your application on 28 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, and applicable statutes, regulations, and policies. You enlisted in the Marine Corps and began a period of active duty on 16 August 1995. On 21 February 1996 you were counseled concerning academic failure. On 9 April 1998 you received nonjudicial punishment (NJP) for a period of unauthorized absence (UA) and disrespect toward an NCO. On 23 July 1999 you received a second NJP for failure to obey a lawful order and for wrongful appropriation. You were subsequently counseled on the misconduct that resulted in the second NJP. On 14 August 2002 you were counseled regarding failure to pay a debt and possible misuse of the government travel credit card. In 2003 during deployment to Iraq, you began to experience mental health issues. In your application for correction, you stated that since your discharge, you have struggled with the psychological effects of traumatic brain injury (TBI), Post Traumatic Stress Disorder (PTSD), and Major Depressive Disorder. In 2004 you were assigned duty as a canvassing recruiter. In 2007 you were found guilty at special court martial proceedings for unauthorized absence and wrongful use of a controlled substance. Administrative separation proceedings were initiated against you on the basis of drug abuse. On 5 October 2008 you were discharged from the Marine Corps on the basis of drug abuse, and received an other than honorable (OTH) discharge characterization. In your application to the Board, you ask for an upgrade to your OTH discharge characterization to reflect an honorable discharge characterization, a medical retirement, or other relief as appropriate. You provide a brief in support of your application for your correction. You state that it was your lifelong aspiration to be in the Marine Corps. You excelled in your first enlistment. In 2004 you were assigned to duty as a Canvassing Recruiter were you continued to do well in the performance of your duties until August 2007, when you began to experience difficulties with direct superiors. You assert that you were absent for a few hours and when you returned, you were administered a urinalysis by your command in which you tested positive for etrahydrocannabinol (THC). You were charged as special court martial, which ultimately resulted in your unfair separation from the Marine Corps with an OTH discharge characterization. You cite your post-service achievements including beginning a career in truck driving and remaining close to your family. You assert that the Commandant of the Marine Corps unjustly discharged you from the service in part because the discharge was not approved by the Secretary of the Navy, and that the OTH discharge characterization was improper, erroneous, not supported by the record evidence and is a violation of law. You also assert that following your deployment to Iraq, you did not receive treatment and contend that liberal consideration should be applied to your request. You ask that your 13 years of selfless service to your country and the Marine Corps be taken into consideration. As part of the review process, three Advisory Opinions (AO) were obtained in regard to your request for correction to your service record. Headquarters Marines Corps, Military Personnel Law Branch issued an AO dated 5 December 2019, in which the recommended denial of the application. The AO noted that MARCORSEP manual in effect in September 2008 authorized DC(M&RA) to serve as the separation authority in instances when the administrative separation is based upon a serious offense that resulted in conviction at special court martial. Headquarters Marine Corps, Separation and Retirement Branch issued a second AO dated 13 December 2019, in which the AO found that the DC(M&RA) was to appropriate separation authority for Petitioner’s discharge, and noted that PTSD and TBI screening was not required at the time of Petitioner’s administrative separation. A Physician Advisor reviewed Petitioner’s contention of suffering from mental health issues as a result of his military service, and issued an AO dated 14 September 2020. The 14 September 2020 AO found that there is insufficient evidence that Petitioner incurred a mental health condition as a result of his military service or that his misconduct may be mitigated by any mental health condition. The three AOs were provided to you, and you were given 30 days in which to submit a response. When you did not provide a response within the 30-day timeframe, your case was submitted to the Board for consideration. The Board, in its review of your entire record and application, carefully considered your request for an upgrade to your other than honorable characterization of service, a medical retirement, and other relief as appropriate. The Board first considered your assertions that your discharge was improper because it was not approved by the Secretary of the Navy, and because you did not receive treatment for possible mental health issues during your time in the Marine Corps. The Board reviewed the AOs of 5 and 13 December 2019, and concurred substantively with the finding that the discharge was authorized to be approved by DC(M&RA). Additionally the Board noted that PTSD/TBI screenings were not mandatory at the time of Petitioner’s discharge, and concluded that Petitioner’s discharge was executed without error or injustice. The Board noted that you raise mental health issues as mitigating factors with respect to your conduct while in the Marine Corps. Accordingly, the Board fully and carefully considered your request 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. The Board also reviewed your petition in light of the Under Secretary of Defense’s memorandum, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations” of 25 July 2018. The Board reviewed the AO dated 14 September 2020, and considered your submissions to the Board, taking particular note of the Veterans Affairs documentation. The Board substantively concurred with AO’s the determined that there is insufficient evidence that you incurred a mental health condition as a result of your military service and that your misconduct may be mitigated by any mental health condition. Accordingly, the Board reviewed the information in your service record and found that the misconduct documented in your special court martial conviction supported the issuance of your OTH discharge characterization. The Board considered your request for a medical retirement based on service-connected mental health conditions incurred during your deployment to Iraq. The Board noted that SECNAVINST 1850.4 series states processing for administrative discharge for misconduct take precedence over processing for disability. Even in consideration of your assertion of suffering from mental health conditions of PTSD/TBI and taking note of your deployment to Iraq, the Board found that your misconduct as evidenced by your special court martial conviction was an appropriate basis for your administrative discharge. In reviewing the circumstances of your separation and characterization of service, the Board considered the totality of the circumstances to determine whether relief is appropriate today in the interests of justice in accordance with guidance provided by the Under Secretary of Defense for Personnel and Readiness (Wilkie Memo of 25 July 2018). Accordingly, the Board considered and acknowledged your positive contributions to the Marine Corps, the length of your active duty service to our nation, and your post-discharge achievements. Even considering these potentially mitigating factors in accordance with the above referenced guidance, the Board did not find that relief was in the interests of justice based on your misconduct of wrongful use of a controlled substance and UA. The Board concluded that your OTH discharge characterization was issued without error or injustice, and that corrective action is not warranted. 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. Sincerely,