DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 
Docket No: 2196-20 
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 5 May 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). 
You initially enlisted in the Marine Corps Reserve (USMCR) on 3 November 2008. Your pre­enlistment physical examination and self-reported medical history on 11 October 2007 noted no psychiatric or neurologic conditions or symptoms. On 9 April 2009 you were honorably discharged at the completion of your initial recruit training and required active service. Upon your discharge, you were initially assigned to a USMCR unit situated in . 

As part of your enlistment paperwork, on 11 August 2008 you had previously signed an acknowledgement entitled, “Statement of Understanding Upon Enlistment of the Marine Corps Reserve Optional Enlistment Program” (SOU), regarding the satisfactory participation requirements with the USMCR. Such SOU stated that satisfactory participation in the USMCR consisted of the performance of forty-eight scheduled weekend drills and not less than fourteen days of active duty for training during each year of your contract. You expressly acknowledged that you were required to attend drills and training periods and your failure to attend drills and training periods could result in a less than honorable discharge. 

However, starting in fiscal years 2014 and 2015, you failed to attend certain scheduled reserve drills and accumulated more than enough unexcused absences to deem you an unsatisfactory participant in the USMCR. Your unexcused drill absences were documented by your unit using “Page 11” administrative entries in your service record and also by sending you multiple “Unsatisfactory Participation in the Selected Marine Corps Reserve” notification letters via U.S. Certified Mail. 

On 4 March 2015 your command mailed to your home address of record via U.S. Certified Mail a notification of administrative separation (Adsep) proceedings by reason of unsatisfactory participation in the Ready Reserve and a corresponding acknowledgment/election of rights form. Based on the signed affidavit of service completed by your unit, you failed to return the Adsep acknowledgment/election of rights paperwork in a timely manner. Your failure to complete the Adsep notification package and election of rights and return it to the command on a timely basis operated as a waiver of your rights in connection with the Adsep board. In the interim, on 15 August 2015 your unit noted that there was no documentation to support a prior diagnosis of post-traumatic stress disorder (PTSD) or traumatic brain injury (TBI), and the senior medical department representative determined that neither PTSD nor TBI were considered factors in your unauthorized absences. Ultimately, on 14 October 2015 you were separated from the Marine Corps for unsatisfactory participation in the Ready Reserve with a general (under honorable conditions) (GEN) characterization of service and assigned an RE-4 reentry code. In this regard, you were assigned the correct characterization and reentry code based on your factual situation. 
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 mental health contentions and the available records and issued an AO dated 13 March 2021. The MD initially observed that your military records did not contain evidence of a mental health diagnosis or psychological/behavioral changes indicating a mental health condition. The MD noted that you presented clinical evidence of a concussion in March 2010 requiring hospitalization and three months of outpatient follow-up, after which time all residual symptoms resolved. The MD also noted that you were returned to full work status by your treating physician and occupational/physical therapists on 3 June 2010, and that there was no further evidence presented that you experienced any subsequent medical or mental health sequelae from such concussion. The MD also observed that your period of unsatisfactory participation in your reserve obligations occurred four years after his concussion, with four of the next five years of reserve duty following your concussion considered satisfactory years for USMCR retirement purposes. The MD concluded by opining that the preponderance of available objective evidence failed to establish you were diagnosed with or suffered from residual effects of a TBI at the time in question of his USMCR service, or that the unsatisfactory performance of your USMCR duties could be attributed to a mental health condition. 

The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in your case in accordance with the Hagel, Kurta, and Wilkie Memos. These included, but were not limited to your contentions that: (a) you suffered a TBI during your second year in the USMCR which left you in a coma for a day and months of continued treatment and years of mental health issues; (b) from August 2013 to August 2014 you were incarcerated for violating a restraining order from your ex-wife; (c) August 2015 to October 2015 was a two-month period of individual ready reserve (IRR) time; and (d) you have volunteered for unpaid funeral duty in order to make up for some missed drills. However, given the totality of the circumstances, the Board determined that your request does not merit relief. 

In accordance with the Hagel, Kurta, and Wilkie Memos, the Board gave liberal and special consideration to your record of service, and your contentions about any traumatic or stressful events you experienced and their possible adverse impact on your service. However, even under the liberal consideration standard, the Board concluded that there was no evidence that you suffered from any type of service-connected mental health-related condition, or that any such TBI or mental health condition was related to or mitigated the misconduct that formed the basis of your discharge. As a result, the Board concluded that your misconduct was not due to TBI or mental health-related symptoms. The Board also observed that you signed an SOU prior to affiliating with the USMCR. The SOU clearly outlined the annual requirements for your satisfactory participation in the USMCR. The Board also noted that no evidence exists in the record that you ever made up any missed drills. The Board determined the record reflected that your misconduct was intentional and demonstrated you were unfit for further service. The Board also determined that the evidence of record did not demonstrate that you were not mentally responsible for your conduct or that you should otherwise not be held accountable for your actions.
 
Additionally, the Board 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 record was otherwise so meritorious as to deserve a discharge upgrade and determined that Marines should receive no higher discharge characterization than is due. The Board determined that characterization under other than honorable (OTH) or GEN conditions 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 and medical treatment, or enhancing educational or employment opportunities. The Board carefully considered any matters submitted regarding your post-service conduct and accomplishments. However, 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 discharge, and the Board concluded that your misconduct merited your GEN discharge and RE-4 reentry code. 

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, 
5/11/2021 

4