Docket No: 1800-20
Ref: Signature Date


Dear 
 
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 24 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, 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 enlisted in the Marine Corps on 27 September 1979.  On 12 August 1980, you received non-judicial punishment (NJP) for unauthorized absence (UA) totaling seven days.  On 4 June 1980, you requested a hardship discharge, which was disapproved by the Commandant of the Marine Corps.  On 23 March 1981, a special court martial (SPCM) convicted you of UA totaling 166 days.  You were sentenced to confinement for 90 days, reduction to E-1, and a bad conduct discharge (BCD).  After the BCD was approved at all levels of review, you were discharged on 14 October 1982.  On 24 September 2003, the Board denied your request to upgrade your discharge.      
   
Your contention that you suffered from Post-Traumatic Stress Disorder (PTSD)/Mental Health Condition was fully and carefully considered by the Board 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 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 desire to upgrade your discharge and contentions that: (a) a Mental Health Condition was the reason for your misconduct; (b) your attorney did not tell you that you were receiving a BCD; and (c) you were granted a week of leave and the officer who approved the leave did not do the paperwork, and your Executive Officer (XO) denied your leave request and told you to hit the gate and keep going.  Based upon this review, the Board concluded these potentially mitigating factors were insufficient to warrant relief.  Specifically, the Board found no nexus between a Mental Health Condition and your misconduct.  The Board also noted that you were provided an additional 60 days to submit documentation supporting your claim of a Mental Health Condition to the Board and you provided no diagnostic evidence to support your claim.  Even under the liberal consideration standard, the Board found that the seriousness of your misconduct, as evidenced by your NJP and SPCM conviction, outweighed these mitigating factors.  Accordingly, given the totality of the circumstances, the Board determined that your request does not merit relief. 
 
Regarding your contention that your attorney did not tell you that you were receiving a BCD, the Board noted that the record contains documented evidence that is contrary to your contention.  The record clearly shows that on 23 March 1981, a SPCM convicted you of UA totaling 166 days and sentenced you to confinement for 90 days, reduction to E-1, and BCD.  Regarding your contentions that you were granted a week of leave and the officer who approved the leave did not do the paperwork and your XO denied your leave request and told you to hit the gate and keep going.  The Board noted that there is no evidence in your record, and you submitted none, to support your contentions. 
 
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,