DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 4150-20 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 limitation 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 16 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, 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 originally enlisted in the Marine Corps on 23 July 1996 and were discharged at the completion of your required active service on 22 July 2000 with an honorable characterization of service. Your pre-enlistment medical history and physical examination on 17 July 1996 noted no psychiatric or neurologic conditions or symptoms. You reenlisted in the Marine Corps on 2 July 2001 following a brief period spent in the Marine Corps Reserve. On 15 October 2001 you were issued a “Page 11” counseling warning (Page 11) for unauthorized absence (UA) and willfully disobeying a superior commissioned officer. The Page 11 expressly warned you that a failure to take corrective action may result in administrative separation, judicial proceedings, or limitation on further service. On 22 October 2001 you received non-judicial punishment (NJP) for UA, willfully disobeying a superior commissioned officer, and for disobeying a lawful general regulation prohibiting fraternization. On 19 November 2001 you were issued a Page 11 warning for breaking restriction. The Page 11 again expressly warned you that a failure to take corrective action may result in administrative separation, judicial proceedings, or limitation on further service. However, on 22 August 2002 you were issued a third Page 11 warning for violating Marine Corps Order 1700.28 by hazing new Marines at . The Page 11 expressly warned you that a failure to take corrective action may result in administrative separation or limitation on further service. Following your 2003 deployment to , on 6 August 2003 you received NJP for the wrongful possession of drug paraphernalia and wrongful possession of a controlled substance. On 24 September you were charged by civilian authorities in for DUI and hit and run. On 5 November 2003 your separation physical and medical history both noted no psychiatric or neurologic conditions or symptoms. On 18 November 2003 you refused a Medical Officer’s Evaluation for drug abuse/addiction. On 21 November 2003 you were notified that you were being processed for an administrative discharge by reason of misconduct due to drug abuse. You elected in writing to waive your rights to consult with counsel and to present your case to an administrative separation board. Ultimately, on 11 March 2004 you were discharged from the Marine Corps for misconduct with an other than honorable conditions (OTH) characterization of service and assigned an RE-4 reentry code. As part of the Board review process, the BCNR Physician Advisor who is a medical doctor and Fellow of the American Psychiatric Association (MD), reviewed your contentions and the available records and issued an initial AO dated 31 March 2021. The MD initially observed that you explained that your steroid use was in order to enhance your athletic performance. The MD noted that upon your return from deployment, your reported experiencing depression, anxiety, intrusive memories, and increasing substance abuse indicative of early PTSD psychological symptoms and behaviors. Notwithstanding, the MD determined that your misconduct prior to your Iraq deployment could not be attributed to PTSD. The MD concluded by opining that the preponderance of objective evidence established you were diagnosed with PTSD post-discharge, exhibited early symptoms indicative of PTSD after your OIF deployment, and that only the misconduct behaviors during and after your deployment could be attributed to PTSD. The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in your case in accordance with the Kurta, Hagel, and Wilkie Memos. These included, but were not limited to your contentions that: (a) you were diagnosed by the VA in 2019 with PTSD and major depressive disorder (MDD); (b) you received this trauma while serving in Iraq during OIF where you conducted over fifty fire missions; (c) your PTSD and MDD went undiagnosed and untreated resulting in the misconduct underlying your OTH discharge; and (d) with proper treatment you would have stayed in the Marine Corps with the opportunity for a second deployment to Iraq with your unit in 2004. 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 notwithstanding any VA mental health diagnoses to the contrary, that there was no nexus between any mental health conditions and/or related symptoms and your misconduct, and determined that there was insufficient evidence to support the argument that any such mental health conditions were related to or mitigated the misconduct forming the basis of your discharge. Even under the liberal consideration standard, the Board concluded that your drug-related misconduct was not due to mental health-related conditions or symptoms. The Board 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 noted that your admitted use of steroids was to enhance athletic performance, and was not to self-medicate in order to cope with your PTSD/MDD or to alleviate any related symptoms. Moreover, the Board determined that every Page 11 warning you received during your second enlistment documented serious military offenses that independently could have each warranted separation with an OTH discharge. The Board further 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 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. The Board also determined the record clearly reflected that your misconduct was intentional and demonstrated you were unfit for further service. 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. Lastly, 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 cumulative misconduct merited your receipt of an OTH. 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,