Docket No: 2095-20 
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 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 28 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).  The Board also considered an advisory opinion (AO) from a qualified mental health professional dated 7 March 2021, which was previously provided to you. 
 
You entered a period of active duty in the Marine Corps on 28 June 1980.  On 22 June 1981 you were absent from your unit and an Armed Forces warrant was issued for your return.  You were returned to military control on 25 August 1981.  The warrant noted you were to be returned under military guard to stand trial by court-martial, that you had broken probation awarded at civil trial, and that you were wanted by civil authorities.  On 30 April 1982 after consulting with counsel, you submitted a request for a good of the service discharge to escape trial by court-martial for commission of a serious offense.  In this request you acknowledged that your characterization of service would be under other than honorable conditions.  On 14 May 1982 you were so discharged. 
 
You contend that while you were enlisted, you had to report to your parole officer and were arrested for failure to report for scheduled monthly appointments while you were on a 90 day field maneuver.  You state you were sent to a hospital for a 90 day evaluation and when you returned to  you were arrested regarding a civil matter, and that your Commanding Officer was aware of the situation.  You further contend you did not commit a crime against a fellow Marine and caused no embarrassment to the Marine Corps.  You assert that you enlisted when you were 17 years old and you were 19 when this incident occurred.  You suffer from injuries and would like to receive Veterans Affairs (VA) benefits. 
 
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 contentions noted above, and desire to upgrade your discharge.  The Board also relied on the AO in making its determination.  The AO concluded that the preponderance of available objective evidence failed to establish that you were diagnosed with a mental health condition, suffered from a mental health condition at the time of your military service, or that your in-service misconduct could be mitigated by a mental health condition.  Based upon this review, the Board concluded that these potentially mitigating factors were insufficient to warrant relief.  Specifically, the Board determined that your misconduct, as evidenced by your unauthorized absence and involvement with civilian authorities, outweighed these mitigating factors.  Accordingly, given the totality of the circumstances, the Board determined that your request does not merit relief.  Additionally, whether an individual is entitled to veterans’ benefits is a matter under the cognizance of the VA and you may contact their nearest office concerning your right to apply for benefits.  If benefits have been denied, you may be able to appeal the denial under procedures established by the VA.  
 
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, 
5/16/2021
Executive Director