Docket No:  2894-20 
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.     
 
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. 
 
A three-member panel of the Board, sitting in executive session, considered your application on 24 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 the 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 25 July 2018 guidance from the Under Secretary of Defense for Personnel and Readiness regarding equity, injustice or clemency determinations (Wilkie Memo).  In addition, the Board considered the advisory opinion (AO) furnished by a qualified mental health professional dated 24 March 2021, which was previously provided to you. 
   
You enlisted in the Marine Corps and began a period of active duty on 12 September 2000.  On 23 January 2003, you were issued a Military Protective Order (MPO) concerning your association and contact with the spouse of another Marine and their minor child.  On 12 February 2003, a command investigation into the allegation made against you found that you had an inappropriate relationship with the spouse of another Marine, that the inappropriate relationship did involve sexual intercourse, you threatened that Marine with violence, and disobeyed a lawful order not to have contact with the Marine’s wife.  On 17 February 2003, you violated your MPO by calling the home of the spouse, but you did not leave a message.  On 12 March 2003, you received nonjudicial punishment (NJP) for disobeying a lawful order, provoking speeches or gestures and adultery.  On 7 April 2003, you were counseled concerning your NJP, and notified of administrative discharge action by reason of misconduct due to commission of a serious offense.  After being afforded your procedural rights, you elected to have your case heard before and administrative discharge board (ADB).  On 9 July 2003, the ADB found you committed misconduct due to commission of a serious offense, and recommended separation with a general characterization of service.  However, the ADB recommended that your separation from the Marine Corps be suspended for a period of six months.  On 24 July 2003, your case was forwarded to the separation authority, who concurred with the ADB’s findings and recommendation of a general discharge, but did not concur with the recommendation that your separation be suspended for six months.  On 22 August 2003, a staff judge advocate reviewed your case and found it sufficient in law and fact.  On 26 August 2003, the separation authority directed that you receive a general (under honorable conditions) discharge due to commission of a serious offense.  On 29 August 2003, you were discharged from the Marine Corps with a general (under honorable condition) characterization of service. 
  
Your request was fully and carefully considered by the Board in light of the Secretary of Defense’s Memorandum, “Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requested by Veterans Claiming Post Traumatic Stress Disorder” of 3 September 2014 and the "Clarifying Guidance to Military Discharge Review Board and Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modification of their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment" memorandum of 25 August 2017. 
 
A qualified mental health professional reviewed your request for correction to your record and provided the Board with an AO regarding your assertion that you were suffering from a mental health condition during your service.  The AO noted that based on the available evidence, the preponderance of objective evidence failed to establish you were, diagnosed with or suffered from a mental health condition at the time of your military service, or that your in-service 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 Wilkie Memo.  These included, but were not limited to your request to upgrade your discharge, and your statement that you would provide a letter (to be drafted) explaining why. Based upon this review, the Board concluded these potentially mitigating factors were insufficient to warrant relief.  Specifically, the Board determined that your misconduct, as evidenced by NJP and MPO violation, outweighed these mitigating factors.  Additionally, the Board concurred with AO that based on the available evidence, the preponderance of objective evidence failed to establish that you were diagnosed with or suffered from a mental health condition at the time of your military service, or that your in-service misconduct could be attributed to a mental health condition.  Accordingly, given the totality of the circumstances, the Board determined that your request does not merit relief.  
 
 
 
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, 


5/27/2021
Executive Director