Docket No: 1888-20           
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 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 26 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 16 March 2021 advisory opinion (AO) from a mental health professional as well as your response to same. 
 
You enlisted in the Marine Corps on 7 September 1983.  On 5 July 1984, you received a written warning for frequent involvement with military authorities as well as for failing to pay your just debts.  On 12 October 1984, you were convicted by a special court-martial for disobeying an order, uttering worthless checks, disrespect, striking a corporal, and for a period of unauthorized absence of less than one month.  Your sentence included a bad conduct discharge, which was approved, and you were discharged, on 23 October 1985.   
 
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.  In your written statement you provided with your petition, you explained that while you were in the service, you became affected with the emotional strain of ongoing marital discourse, feelings of isolation, anxiety, fear, numbness, anger, and depression.  You explained the facts and circumstances that led to your discharge from the Marine Corps and you further explained that you were in a motor vehicle accident, which caused a traumatic brain injury (TBI), and you provided medical records including materials that you also provided to the Department of Veterans’ Affairs.   
 
In connection with your contentions, the Board sought the 16 March 2021 AO.  The AO reviewed all of your contentions and available records.  The AO noted that throughout your “military service, disciplinary actions, counselings, and administrative processing, as well as [your] separation physical examination, there were no concerns noted which would have warranted further referral to mental health resources.”  The AO concluded, “it is my considered medical opinion the preponderance of available objective evidence failed to establish Petitioner suffered from a mental health condition at the time of his military service, or his in-service 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 finding of the AO that the evidence fails to establish that your in-service misconduct could be attributed to a mental health condition.  Given the totality of the circumstances, and in light of the misconduct that was the cause of your discharge as evidenced by your special court-martial conviction and resultant bad conduct discharge, 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, 
4/29/2021
Executive Director