Docket No: 8594-19
Ref: Signature Date                

MR 
 
Dear Mr. : 
 
This is in reference to your application for correction of your naval record pursuant to Section 1552 of Title 10, United States Code.  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 insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied.      
 
A three-member panel of the Board, sitting in executive session, considered your application on 15 January 2021.  The names and votes of the panel members 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, to include the 25 August 2017 guidance from the Secretary of Defense regarding requests by Veterans for modification of their discharge due to mental health conditions, sexual assault, or sexual harassment (Kurta Memo), the 3 September 2014 guidance from the Secretary of Defense regarding discharge upgrade requests by Veterans claiming post-traumatic stress disorder (PTSD) (Hagel Memo), and the 25 July 2018 guidance from the Under Secretary of Defense for Personnel and Readiness regarding equity, injustice, or clemency determinations (Wilkie Memo) (Kurta Memo, Hagel Memo, and Wilkie Memo collectively, “Clemency Memos”).   
 
You enlisted in the Marine Corps on 25 April 1973.  On 14 September 1973 you received non-judicial punishment (NJP) for failing to obey a lawful order.  On 9 October 1973 you received NJP for failing to obey lawful order and four specifications of unauthorized absence (UA).  On 17 October 1973 you received NJP for UA lasting two days.  On 11 Dec 1973 you received NJP for UA lasting three days.  On 17 December 1973 you received NJP for failing to obey a lawful order and insubordinate conduct.  On 18 December 1973 you were convicted at a Special Court-Martial (SPCM) for UA lasting thirty-one days.  On 25 July 1974 you received NJP for failing to obey a lawful order.  On 16 December 1974 you received NJP for insubordinate conduct.  On 13 February 1976 you were convicted at a SPCM for the wrongful possession and introduction of a controlled substance onto a military base.  On 13 July 1976 you received NJP for assault, insubordinate conduct, and willful disobedience of a superior commissioned officer. 
 
On 21 September 1976 you were notified that you were being processed for an administrative discharge by reason of misconduct due to frequent involvement of a discreditable nature with military authorities.  You consulted with counsel and elected in writing to have your case heard by an administrative separation board (Adsep Board).   
 
On 22 November 1976 an Adsep Board convened in your case and you were represented by counsel.  Following the presentation of evidence and witness testimony, the Adsep Board members recommended that you be separated from the Marine Corps with a general (under honorable conditions) (GEN) discharge.  On 6 December 1976 the Staff Judge Advocate at Twentynine Palms determined that your Adsep Board case was legally and factually sufficient.  However, on 9 December 1976 the separation authority disapproved your discharge and retained you on active duty in order for you to complete your contractual enlistment. 
 
On 16 February 1977 you commenced a period of UA that terminated after 251 days on 25 October 1977, with your arrest by civil authorities.  On 29 November 1977 you submitted a voluntary written request for an undesirable discharge for the good of the service in lieu of trial by court-martial for your lengthy UA.  Prior to submitting this voluntary discharge request you conferred with a qualified military lawyer, at which time you were advised of your rights and warned of the probable adverse consequences of accepting such a discharge.  Ultimately, on 15 December 1977 you were separated from the Marine Corps with an other than honorable (OTH) discharge.  On 3 November 1989 the Naval Discharge Review Board denied your application for relief and determined that your discharge was proper as issued and that no change was warranted.  This Board denied your initial discharge upgrade petition on 16 May2016.   
 
As part of the Board review process, the Board’s Physician Advisor who is a licensed clinical psychologist (Ph.D.), reviewed your contentions and the available records and issued an AO dated 10 December 2020.  The Ph.D. noted that your in-service records did not contain direct evidence you suffered a psychological trauma as a precursor to PTSD, nor did they contain direct evidence of psychological/behavioral changes which may have indicated PTSD.  The Ph.D. concluded by opining that although you carry a post-service PTSD diagnosis, there was insufficient evidence you exhibited behaviors associated with PTSD on active duty to mitigate your in-service misconduct. 
 
The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in your case in accordance with the Clemency Memos.  These included, but were not limited to:  (a) you are asking the Board to take a closer look at your proficiency and conduct marks and your service in the Vietnam theater of operations to support your case, (b) since leaving the Marine Corps you have turned your life over to the direction of God and to help others, (c) your JAG attorney advised you to go into a UA status and then turn yourself in at a later time, and (d) you previously went in front of an Adsep board and received a GEN discharge.  However, given the totality of the circumstances, the Board determined that your request does not merit relief. 
 
In accordance with the Clemency Memos, 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, the Board concluded that there was no nexus between any PTSD or PTSD-related symptoms and your misconduct, and determined that there was insufficient evidence to support the argument that any such mental health conditions mitigated the misconduct that formed the basis of your discharge.  Even under the liberal consideration standard, the Board concluded that your pattern of misconduct was not due to mental health-related conditions or symptoms.  The Board also determined that the evidence of record did not demonstrate that you were not mentally responsible for your conduct or that you should otherwise not be held accountable for your actions.     
 
Regarding your contention that your JAG attorney advised you to go UA, there is no credible evidence in the record, and you provided none that you experienced ineffective assistance of counsel.  Moreover, the Board relies on a presumption of regularity to support the official actions of public officers and, in the absence of substantial evidence to rebut the presumption, to include evidence submitted by the Petitioner, the Board presumed that you were properly processed for separation and discharged from the Marine Corps for your long-term UA.  Finally, the voluntary discharge request that you signed and was witnessed by your military counsel, was a standard Marine Corps form and such request specifically stated that you were entirely satisfied with her legal advice. 
 
Additionally, the Board observed 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 in conduct as computed by NDRB was 3.20.  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 pattern of serious misconduct which further justified your OTH characterization of discharge.  Moreover, the Board observed that your dates for participation in Vietnam evacuation operations began in April 1975.  Thus, the Board determined that the overwhelming majority of your pattern of misconduct occurred prior to such date and would have not been mitigated by any purported PTSD triggered by such operations.   
 
The Board noted that characterization under OTH conditions is generally warranted for misconduct and is appropriate when the basis for separation is the commission of an act or acts constituting a significant departure from the conduct expected of a Marine.  The Board carefully considered any matters submitted regarding your post-service conduct and accomplishments, however, even in light of the Wilkie Memo and reviewing the record holistically, the Board still concluded that given the totality of the circumstances, your request does not merit relief.  Accordingly, the Board determined that there was no impropriety or inequity in your discharge, and even under the liberal consideration standard, the Board concluded that your serious misconduct clearly merited your receipt of an OTH. 
 
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,