DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 
Docket No: 2526-20 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 14 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 enlisted in the Marine Corps on 8 June 1982. Your pre-enlistment physical examination on 29 March 1982 and self-reported medical history noted no psychiatric or neurologic conditions or symptoms. 

On 4 October 1984 you received a “Page 11” counseling warning (Page 11) for a lack of regard for authority and half-hearted compliance with orders bordering on disobedience. The Page 11 expressly warned you that a failure to take corrective action may result in administrative separation or judicial proceedings. On both 10 November 1984 and 10 January 1985 you received Page 11 counseling sheets notifying you that you were not recommended for promotion to Corporal because you lacked maturity and/or leadership. On 24 January 1985 you received non-judicial punishment (NJP) for unauthorized absence (UA). On 10 February 1985, 11 April 1985, and 29 April 1985 you received Page 11 counseling sheets notifying you that you were not recommended for promotion to Corporal because you lacked either the necessary skills, proficiency, and/or responsibility. On 16 May 1985 you received NJP for sleeping on duty. On 8 October 1985 you received NJP for the wrongful use of marijuana. On 10 January 1986 you received NJP for UA and for disobeying a written order. On 12 March 1986 you received NJP for UA lasting twenty-eight (28) days. On 2 July 1986 you commenced a period of UA that terminated after 162 days on 11 December 1986 with your arrest by civilian authorities in. 

Your command referred charges to a Special Court-Martial for your 162-day UA. On 18 December 1986 you submitted a voluntary written request for an administrative discharge in lieu of a trial by court-martial for your UA. Prior to submitting this voluntary discharge request you conferred with a qualified military lawyer, at which time you were advised of your rights and warned of the probable adverse consequences of accepting such a discharge. You expressly acknowledged that if this request was approved, your characterization of service would be under other than honorable conditions (OTH). As a result of this course of action, you were spared the stigma of a court-martial conviction for your long-term UA, as well as the potential sentence of confinement and the negative ramifications of receiving a punitive discharge from a military judge. Ultimately, on 20 January 1987 you were separated from the Marine Corps with an OTH discharge and assigned an RE-4 reentry code. 

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 17 March 2021. The MD initially observed that your military records did not contain any evidence of a mental health condition or psychological/behavioral changes indicating a mental health condition. The MD determined that throughout your active duty service, disciplinary actions, counselings, and administrative processing, as well as during your separation physical, there were no concerns cited warranting referral to mental health services. The MD also determined that the post-discharge medical records you provided did not contain evidence of any link to your military service or misconduct, or indications of any mental health conditions on active duty. The MD concluded by opining the preponderance of objective evidence failed to establish you were diagnosed with or suffered from a mental health condition on active duty, or that your misconduct 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) at the time of your discharge you only had six months left before your EAOS; (b) you had mental and other occurring incidents which you inherited while in the Marines; (c) you are still dealing with mental health issues today; (d) while in the military you were introduced to drugs which impaired your decisions; (e) you are currently homeless; and (f) you experienced trauma that affected your mental capacity, and mental liabilities played a part in your decision making. 

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, the Board concluded that there was insufficient evidence that you 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 your discharge. As a result, the Board concluded that your misconduct was not due to mental health-related symptoms. The Board determined the record clearly reflected that your misconduct was willful 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 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 overall active duty trait average in conduct was 3.80. Marine Corps regulations in place at the time of your 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 conduct marks during your active duty career were a direct result of your serious misconduct which further justified your 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 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 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. 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. 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 even under the liberal consideration standard, the Board concluded that your serious misconduct clearly merited your receipt of an OTH, and that your separation was in accordance with all Department of the Navy directives and policy at the time of your discharge. 

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, 
5/20/2021 

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