Docket No: 368-20 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 26 March 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. You enlisted in the Marine Corps on 13 October 1992. On 6 September 1995 you received a “Page 11” counseling warning for conduct unbecoming of a military policeman. You were advised that a failure to take corrective action may result in administrative separation. On 12 January 1996 you were convicted at a Special Court-Martial (SPCM) of two separate specifications of the wrongful use of a controlled substance (methamphetamines). You received as punishment three months of confinement, a reduction in rank to the lowest enlisted paygrade (E-1), and a discharge from the Marine Corps with a Bad Conduct Discharge (BCD). Upon the completion of appellate review in your case, on 6 March 1997 you were discharged from the Marine Corps with a BCD and assigned an RE-4 reentry code. As part of the Board review process, the BCNR Physician Advisor who is a licensed clinical psychologist (Ph.D.), reviewed your contentions and the available records, and issued an AO dated 8 February 2021. The Ph.D. noted that your in-service records did not contain evidence of a PTSD diagnosis or evidence of psychological/behavioral changes indicating any mental health condition. The Ph.D. also noted that there was no indication in your service record or personal statement you were exposed to a primary or secondary trauma. The Ph.D. concluded by opining that although you were diagnosed with post-discharge mental health conditions, the evidence failed to establish you suffered from a mental health condition on active duty, and/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 Hagel, Kurta, and Wilkie Memos. These included, but were not limited to your contentions that: (a) you have suffered from depression, anxiety, and PTSD following a childhood tragedy involving your sister; (b) you hope that the Board will reflect on your overall service and not your one mistake; (c) you did not deserve to be discharged seven months before the end of your obligated service; (d) you should have received help while you were serving; and (e) you would like a discharge upgrade to you can receive VA medical benefits. However, given the totality of the circumstances, the Board determined that your request does not merit relief. The Board noted that in response to the adverse AO you submitted rebuttal materials for consideration. 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 nexus between any mental health conditions and/or their related symptoms and your misconduct, and determined that there was insufficient evidence to support the argument that any such mental health conditions mitigated the misconduct that formed the basis of your discharge. Even under the liberal consideration standard, the Board concluded that your misconduct was not due to mental health-related conditions or symptoms. The Board also noted that the evidence of record did not demonstrate that you were not mentally responsible for your conduct or that you should not be held accountable for your actions. The Board also determined that the AO rebuttal matters you submitted for consideration did not provide convincing evidence you suffered from mental health symptoms prior to your misconduct. Moreover, the Board noted the record reflected you did not receive any mental health treatment until long after your BCD, and the Board determined that there was insufficient evidence you exhibited any signs of mental health concerns prior to enlistment. The Board noted that your enlistment physical endorsed no pre-service mental health issues, and the Board determined that your in-service performance evaluations prior to your SPCM indicated you performed your duties without incident and that your occupational functioning was not impaired. 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. Additionally, 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. Accordingly, the Board determined that there was no impropriety or inequity in your discharge, and even under the liberal consideration standard for mental health conditions, the Board concluded that your serious misconduct and disregard for good order and discipline clearly merited your receipt of a BCD. The Board also noted that, although it cannot set aside a conviction, it might grant clemency in the form of changing a characterization of discharge, even one awarded by a court-martial. However, the Board concluded that despite your contentions this is not a case warranting any clemency. You were properly convicted at a SPCM of serious drug-related misconduct, and the Board did not find any evidence of an error or injustice in this application that warrants upgrading your BCD. 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. 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,