Docket No: 1502-20            
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 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 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 12 April 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, and applicable statutes, regulations, and policies, including 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).  The Board also requested and reviewed a 25 February 2021 advisory opinion (AO) from a mental health professional, which has been provided to you, and to which you did not provide a response. 
 
You enlisted in the Marine Corps on 19 November 1997.  On 18 December 2000, you received a written counseling due to your failure to inspect trip tickets.  On 12 March 2001, you received another counseling for due to your dereliction in failing to have vehicles ready for a visit.  The next month, on 24 April 2001, you received nonjudicial punishment for using marijuana.  On 24 April 2001, you were issued a notice of the initiation of administrative discharge processing and your rights in connection therewith.  You waived your right to an administrative board.  On 4 June 2001, you received nonjudicial punishment for failing to make restricted muster.  On 13 June 2001, your commanding officer recommended that you be discharged with an other than honorable characterization of service, and you were so discharged on 16 July 2001. 
 
The Board carefully considered all potentially mitigating factors in your petition to determine whether the interests of justice warrant relief in your case including in accordance with the Kurta and Wilkie Memos.  These included, but were not limited to, your contentions that, while you were in the Marine Corps, in 1999, you were deployed on a Marine Expeditionary Unit (MEU) that was deployed to the Middle East for a one-year tour and you came back home with severe anxiety and depression from being in a combat zone.  You stated that you requested assistance to deal with your mental state as well as other issues and your requests were met with resistance.  You also stated you were injured while repairing a HMMWV, during which you sustained a knee injury and for which you were prescribed Percocet.  You noted that as a result of the pain and anxiety, a friend suggested that you use marijuana.  You would like to have your discharge characterization upgraded so that you may receive medical and behavioral health assistance and other opportunities afforded veterans. 
 
The Board considered the materials that you submitted with your petition, which also included character references.  In connection with your contentions, the Board sought the 25 February 2021 AO.  In preparing the AO, the mental health professional reviewed all of your contentions and available records.  The AO noted that you did not provide any medical records to support your assertion of a physical injury, and there were none in your naval records.  In addition, the AO noted that your petition did not provided information concerning your MEU deployment, nor did it include any description of your mental health symptoms or the traumatic event which precipitated the purported mental health conditions.  The AO further explained: 
 
Petitioner’s in-service records did not contain evidence of a diagnosis of a mental health condition or psychological/behavioral changes, which may have indicated a mental health condition.  Throughout his disciplinary actions, counselings, and administrative processing, there were no concerns noted which would have warranted referral to mental health resources.  The dearth of in-service records and lack of diagnosis/information on how he meets criteria for a mental health condition make it difficult to establish a timeline of onset and development of mental health symptoms or identify a nexus with his in-service misconduct.  
 
The AO concluded, “[b]ased on the available evidence, it is my considered medical opinion the preponderance of available objective evidence failed to establish Petitioner was diagnosed with a mental health condition, suffered from a mental health condition at the time of his military service, or his inservice misconduct could be attributed to a mental health condition.” 
 
Based upon its review, the Board concluded the potentially mitigating factors you raised were insufficient to warrant relief.  The Board concurred with the findings of the AO.  Given the totality of the circumstances, and in light of the misconduct that was the cause of your discharge as evidenced by nonjudicial punishment on two occasions, including for a charge including drug use, the Board determined that your request does not merit relief. 
 
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. 
 
 Sincerely,