Docket No: 1544-20
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.     
 
The Board determined that your personal appearance, with or without counsel, would 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. 
 
Although you did not file your application in a timely manner, the statute of limitations 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 19 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, 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).  In addition, the Board considered the advisory opinion (AO) furnished by a qualified mental health professional dated 8 March 2021, which was previously provided to you. 
   
You enlisted in the Marine Corps and began a period of active duty on 12 May 1998.  On 26 April 2020, you were convicted by summary court-martial (SCM) of two specifications of disrespect and contempt toward a superior noncommissioned officer.  On 18 August 2000, you received nonjudicial punishment (NJP) for unauthorized absence (UA), disrespect, and wrongful use of marijuana.  On 2 November 2000, you were convicted by a special court-martial (SPCM) of 27 days of UA, disobeying a lawful order, and breaking restriction.  You were sentenced to a period of confinement, a forfeiture or pay and a bad conduct discharge (BCD).  You received your BCD on 13 February 2004. 
 
A qualified mental health professional reviewed your request for correction to your record and provided the Board with an AO regarding your assertion that you were suffering from PTSD during your service.  The AO noted that there is sufficient evidence you exhibited behaviors associated with PTSD during your military service and some of your misconduct may be mitigated by your PTSD. 
 
The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in your case in accordance with the Wilkie Memo.  These included, but were not limited to your assertion that your misconduct was more than likely due to in-service PTSD, based on a diagnosis from a private psychiatrist.  You further assert you were accused of not filling sandbags fast enough, and you were physically threatened.  You contend that you did not partake in any drug use but you did allow other military friends to smoke marijuana in your car while driving to a function off base, which was irresponsible of you in hindsight.  Further, you assert that you did not know that driving to your attorney’s office was breaking restriction, and after you received the call that you broke restriction, and were going to the brig, you got scared, and drove off base to visit your grandmother in , and later returned to face the consequences.  You assert that since your discharge, you have struggled with major depression, isolation, and anxiety.  You have worked hard, volunteered and continue to be a productive member of society.  However, based upon this review, the Board concluded these potentially mitigating factors were insufficient to warrant relief.  Specifically, the Board determined that your misconduct, as evidenced by your NJP, SCM and SPCM conviction, and the fact that you did not claim the drug use was a response to mental health symptoms, rather you denied use altogether, outweighed these mitigating factors.  Given the totality of the circumstances, the Board determined that your request does not merit relief.  
 
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,