Docket No: 2391-20            
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 15 March 2021 advisory opinion (AO) from a mental health professional, a copy of which was provided to you, and to which you did not provide a response. 
 
You enlisted in the Marine Corps on 16 July 1969.  On 20 July 1970, you commenced a period of unauthorized absence, which was terminated by your apprehension on 3 September 1970.  On 14 June 1970, you received nonjudicial punishment for the aforementioned unauthorized absence.  On 22 September 1970, you commenced another period of unauthorized absence and you returned to military authority on 28 September 1970.  On 1 October 1970, you received nonjudicial punishment for the aforementioned unauthorized absence.  On 12 November 1970 you again commenced a period of unauthorized absence, which was terminated by your apprehension on 30 November 1970.  On 15 December 1970, you again commenced a period of unauthorized absence and surrendered on 20 January 1971.  You were charged with these two periods of unauthorized absence, and you were convicted by a special court-martial based on those charge on 26 February 1971.  On 16 June 1971, you commenced another period of unauthorized absence, which lasted until you surrendered to the Marine Corps Clemency Unit on or about 4 October 1974.  You submitted a petition for clemency based on a program where you would be authorized to submit a request for discharge in lieu of court-martial, if you agreed to provide alternative service.  In your request for clemency, you explained that you were opposed to the Vietnam War due to the fact that your brother was killed in Vietnam.  Your request for clemency was granted, and on 4 October 1974, you submitted a request for an other than honorable discharge in lieu of a trial by court-martial and you agreed to serve in an alternative capacity.  On 12 January 1976, you were terminated from the alternative service program due to your failure to participate.   
 
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 Kurt and Wilkie Memos.  You contend that while you were in service you were dealing with psychological or mental health issues.  You were in fear of being sent to Vietnam, as your brother was killed in Vietnam in 1967, and that affected you psychologically and mentally.  In light of your assertions concerning your mental health, the Board obtained the 15 March 2021 AO.  The AO explained that: 
 
Petitioner’s in-service records did not contain evidence of a diagnosis of a mental health condition, or psychological/behavioral changes, which may have indicated a mental health condition. Throughout his military service, disciplinary actions, counselings, and administrative processing, as well as his separation physical examination, there were no concerns cited which would have warranted referral to mental health resources.  There was no post-discharge evidence presented of a mental health condition. 
 
The AO concluded, “it is my considered medical opinion the preponderance of available objective evidence failed to establish Petitioner was diagnosed or 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.  The Board also noted that you were provided an opportunity to participate in the post-Vietnam clemency program, and you were terminated from that program due to your failure to participate.  Given the totality of the circumstances, in light of the finding of the AO, the misconduct that was the cause of your discharge as evidenced by your several periods of unauthorized absence, one of which was very lengthy, and your failure to complete your alternative service program, 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