Docket No: 1289-20
Ref: Signature Date
 
 

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.   
 
Although you did not file your application in a timely manner, the statute of limitation was waived in accordance with the 25 August 2017 guidance from the Office of the Under Secretary of Defense for Personnel and Readiness (Kurta Memo).  A three-member panel of the Board, sitting in executive session, considered your application on 26 March 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 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).    
 
You originally enlisted in the Marine Corps on 5 November 1997.  Your pre-enlistment medical history and physical examination on 25 September 1997 noted no neurological or psychiatric conditions or symptoms.  On 21 January 2000 you received non-judicial punishment (NJP) for unauthorized absence (UA) and failing to obey a lawful order/regulation.  You did not appeal your NJP.   
 
In February 2000 you had arthroscopic left shoulder surgery due to shoulder instability.  On 27 April 2000 a Medical Board (MB) diagnosed you with left shoulder instability and placed you on eight months of limited duty.  The MB did not refer you to a Physical Evaluation Board.   
 
On 25 September 2001 you were convicted at a Summary Court-Martial of the wrongful use of cocaine and making a false official statement.  As punishment, you were sentenced to twenty-nine days of confinement and reduced to the lowest enlisted paygrade (E-1).  On 19 October 2001 you were notified that you were being processed for an administrative discharge by reason of misconduct due to drug abuse.  You consulted with counsel and elected your right to submit written rebuttal statements, but you waived your right to present your case to an administrative separation board.  In the interim, your 24 October 2001 separation physical and medical history both noted no neurological or psychiatric conditions or symptoms.  On your medical history you specifically answered “No” to ever having or currently suffering from:  (a) depression/excessive worry, (b) frequent trouble sleeping, or (c) nervous trouble of any sort.  Ultimately, on 26 October 2001 you were discharged from the Marine Corps for misconduct with an other than honorable conditions (OTH) characterization of service and assigned an RE-4B reentry code.  On 21 July 2014 the Naval Discharge Review Board (NDRB) determined that your discharge was proper as issued and no change was warranted. 
 
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 18 February 2021.  The Ph.D. initially observed that the MB you appeared before in April 2000 did not endorse any mental health concerns.  The Ph.D. noted that your in-service records did not contain any evidence of a mental health diagnosis or psychological or behavioral changes indicating a mental health condition.  The Ph.D. also noted that you did not provide any post-discharge clinical evidence to support your mental health contentions.  The Ph.D. concluded by opining that there was insufficient evidence that you were diagnosed with PTSD, suffered from PTSD on active duty, or that your misconduct was attributable to PTSD or other mental health conditions. 
 
The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in your case in accordance with the Kurta, Hagel, and Wilkie Memos.  These included, but were not limited to:  (a) after being deployed to Operation Desert Fox you were suffering from severe PTSD symptoms, (b) at such time you were unaware the issues you were facing were in fact PTSD, (c) because you were unaware at the time, you looked for other ways to cope with your mental health issues, (d) you were experiencing service-connected pain from injuries, nightmares, depression, and severe anxiety with extremely high levels of hostility towards others, (e) you would like to apply for benefits for you and your family, (f) you earned a Good Conduct Medal (GCM) and other ribbons and commendations, and (g) your past and current record has been clean and just.  However, given the totality of the circumstances, the Board determined that your request does not merit relief.   
 
In accordance with the Kurta, Hagel, and Wilkie 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 convincing evidence that you suffered from any type of mental health condition or PTSD symptoms while on active duty, or that any such mental health condition or symptoms were related to or mitigated the misconduct that formed the basis of your discharge.  As a result, the Board concluded that your misconduct was not due to mental health-related symptoms.  Moreover, the Board observed that you did not submit any clinical documentation, treatment records, or other corroborating evidence to substantiate your mental health claims.  Additionally, the Board noted the glaring discrepancy between your claim of certain service-connected mental health symptoms you experienced, and your separation physical medical history where you expressly denied any and all mental health issues and symptoms.  The Board observed that on your 2014 NDRB application you made no mention of experiencing any mental health conditions or symptoms when you had every incentive to do so.  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.       
 
The Board noted, contrary to your contention, that you did not earn the Marine Corps GCM because you never had any three continuous years of service without either a court-martial conviction or an NJP.  The Board did not believe that your record was otherwise so meritorious as to deserve a discharge upgrade and determined that Marines should receive no higher discharge characterization than is due.  The Board determined that characterization under OTH conditions 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 also determined the record clearly reflected that your misconduct was willful and demonstrated you were unfit for further service.  Lastly, absent a material error or injustice, the Board generally will not summarily upgrade a discharge solely for the purpose of facilitating benefits from the Department of Veterans Affairs, or enhancing educational or employment opportunities.  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,