Docket No: 2187-20
Ref: Signature Date                

Dear   
 
This is in reference to your application for correction of your late husband’s 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 16 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, an Advisory Opinion (AO) from a qualified mental health provider, 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 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. 
 
Your husband enlisted in the Marine Corps on 8 September 1970.  His pre-enlistment physical examination and medical history on 14 August 1970 both noted no psychiatric or neurologic conditions or symptoms.   
 
On 29 May 1971 your husband’s command issued him a “Page 11” counseling warning (Page 11) noting that his conduct/proficiency and attitude was below acceptable standards and that continuation may result in an administrative discharge.  On 11 June 1971 your husband’s command issued him another Page 11 noting that his conduct/proficiency and attitude was still below acceptable standards and that continuation may result in an administrative discharge.  On 15 June 1971 your husband received non-judicial punishment (NJP) for unauthorized absence (UA) and insubordinate conduct.  On 19 July 1971 your husband’s command issued him another Page 11 noting that his conduct/proficiency and attitude was still below acceptable standards and that continuation may result in an administrative discharge.   
 
On 5 September 1971 your husband was convicted at a Summary Court-Martial of assault consummated by a battery after he broke another Marine’s jaw.  On 28 October 1971 your husband received NJP for insubordinate conduct.  On 28 December 1971 your husband received NJP for violating a both lawful order and a lawful general order.   
 
On 4 February 1972 your husband underwent a psychiatric evaluation in connection with charges against him for larceny.  The Medical Officer determined that your husband was not suffering from any organic, toxic, or functional psychosis.  The Medical Officer also concluded that your husband knew right from wrong and had the ability to form the intent required for the charged offense.   
 
On 7 February 1972 your husband received another NJP for UA and two separate specifications of willfully disobeying a superior commissioned officer.  On 10 March 1972 your husband’s command notified him that he was being processed for an administrative discharge by reason of misconduct due frequent involvement of a discreditable nature with military authorities (a pattern of misconduct).  On 14 March 1972 your husband consulted with counsel and expressly waived his right to a hearing before an administrative separation board.  In the interim, your husband’s separation physical examination on 4 April 1972 noted no neurologic or psychiatric issues or symptoms.  Ultimately, on 26 April 1972 your husband was separated from the Marine Corps for misconduct with an other than honorable conditions (OTH) characterization of service, and assigned an RE-4 reentry code.  Unfortunately, on 23 July 1974, the Board noted that your husband passed away on 23 July 1974 due to an intracerebral lesion. 
 
As part of the review process, the BCNR Physician Advisor, who is also a medical doctor (MD) and a Fellow of the American Psychiatric Association, reviewed your contentions and the available records and issued an AO dated 19 March 2021.  The MD initially observed that your husband’s in-service records did not reveal any evidence of a service-connected mental health condition/diagnosis, behavioral changes indicating any mental health conditions, or evidence your husband experienced any primary or secondary trauma.  The MD noted that throughout your husband’s military service, disciplinary actions and administrative processing, there were no indications of mental health conditions requiring referral to mental health resources.  The MD also noted that your husband’s cause of death is not listed as a medical condition assumed to be related to Agent Orange exposure.  The MD concluded by opining that there was insufficient evidence your husband was either diagnosed with or suffered from a mental health condition on active duty, or that your husband’s misconduct was attributable to a mental health condition.  Following your submission of AO rebuttal matters for consideration, the MD issued a second AO on 7 April 2021 noting that his original opinion remained the same and did not change.  
 
The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in your case in accordance with the Kurta, Hagel, and Wilkie Memos.  These included, but were not limited to the contentions that:  (a) your husband served with good conduct right from the beginning; (b) it was only after being exposed to Agent Orange herbicide while stationed in Okinawa, Japan as well as the negative impact of illegal substances surrounding him that led your husband to use illegal drugs; (c) your husband suffered from medical conditions that his command failed to treat properly and which led to his self-medicating; (d) instead of providing proper treatment his superiors imprisoned your husband, which was due to racism; (e) due to the prescribed and illegal drug exposure and racism it led your husband down the only path he could see; (f) he was given tetracycline and along with other drugs that ultimately led to his death from a brain tumor due to an intracerebral lesion; and (g) your husband suffered from PTSD due to the on-going racism as well as the constant harsh environment due to the on-going war and loss of lives around him.  However, given the totality of the circumstances, the Board determined that your request does not merit relief.   
 
In accordance with the Kurta, Hagel, and Wilkie Memos, the Board gave liberal and special consideration to your record of service, and your contentions about any traumatic or stressful events your husband experienced and their possible adverse impact on your service.  However, the Board concluded that there was no convincing evidence that your husband suffered from any type of mental health condition while on active duty, or that any such mental health conditions or symptoms were related to or mitigated the misconduct that formed the basis of his discharge.  As a result, the Board concluded that your husband’s misconduct was not due to mental health-related symptoms.  The Board also concluded that, even if your husband’s pattern of misconduct was somehow attributable to a mental health condition, the severity of his misconduct far outweighed any mitigation offered by such mental health conditions.  The Board determined the record clearly reflected that your husband’s misconduct was intentional and demonstrated that he was unfit for further service.  The Board also concluded that the evidence of record did not demonstrate that your husband was not mentally responsible for his conduct or that you should otherwise not be held accountable for his actions.     
 
Moreover, the Board determined that there was no convincing evidence of a causal link between Agent Orange exposure and your husband’s death, and the Board also concluded that you did not provide convincing evidence to substantiate your claim that your husband was the victim of systemic or institutional racism on active duty.   
 
Additionally, the Board observed that character of military service is based, in part, on conduct and overall trait averages which are computed from marks assigned during periodic evaluations.  Your husband’s overall active duty trait average was 3.39 in conduct.  Marine Corps regulations in place at the time of your husband’s discharge required a minimum trait average of 4.0 in conduct (proper military behavior), for a fully honorable characterization of service.  The Board concluded that your husband’s conduct marks during his active duty career were a direct result of his pattern of misconduct, which further justified his OTH characterization of discharge.  The Board also noted that there is no provision of federal law or in Navy/Marine Corps regulations that allows for a discharge to be automatically upgraded after a specified number of months or years.  The Board did not believe that your husband’s record was otherwise so meritorious as to deserve a discharge upgrade.  The Board determined that characterization under OTH conditions is generally warranted for misconduct and is appropriate when the basis for separation is the commission of an act or acts constituting a significant departure from the conduct expected of a Marine.  Lastly, absent a material error or injustice, the Board generally will not summarily upgrade a discharge solely for the purpose of facilitating VA benefits, or enhancing educational or employment opportunities.  Even in light of the Wilkie Memo and reviewing the record holistically, the Board still concluded that given the totality of the circumstances your request does not merit relief.  Accordingly, the Board determined that there was no impropriety or inequity in your husband’s discharge, and even under the liberal consideration standard, the Board concluded that your husband’s pattern of serious misconduct clearly merited his receipt of an OTH.  
 
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,