DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 4465-20 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. A three-member panel of the Board, sitting in executive session, considered your application on 7 June 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 2 April 2021, which was previously provided to you. You enlisted in the Marine Corps and began a period of active duty on 5 June 1990. On 17 October 1991, you were counseled concerning your performance and/or conduct. On 5 May 1992, you were notified of a potential health hazard when you were deployed to Operation Desert Storm, and being exposed to heavy atmospheric smoke generated as a result of numerous oil well fires. On 30 July 1992, you were counseled concerning your inability to control your personal finances resulting in revocation of your check writing privileges. On 7 August 1992, you were counseled concerning having persons of the opposite sex in your room after taps. On 12 November 1992, you received nonjudicial punishment (NJP) for wrongfully obtaining telephone services. On 7 August 1993, you were counseled concerning having a female in your room after taps. You were warned that failure to take corrective action could result in administrative discharge action. On 10 January 1994, you were counseled concerning your failure to abide by established liberty times, lack of initiative and professional conduct while off duty. You were warned that failure to take corrective action could result in administrative discharge action. On 12 January 1994, you received NJP for a brief period of unauthorized absence. Based on your Certificate of Release or Discharge from Active Duty (DD Form 214), it appears you submitted a written request for an other than honorable (OTH) discharge for the good of the service in order to avoid trial by court-martial. Prior to submitting this request for discharge, you would have conferred with a qualified military lawyer, been advised of your rights, and warned of the probable adverse consequences of accepting such a discharge. It also appears your request for discharge was granted and on 28 April 1994, when you received an OTH discharge in lieu of trial by court-martial. As a result of this action, you were spared the stigma of a court-martial conviction and the potential penalties of a punitive discharge and confinement at hard labor. Your original service record was incomplete and did not contain any documentation pertaining to your separation from the Marine Corps. Absent such evidence, the Board relied upon the presumption of regularity and presumed that the officials acted in accordance with governing law/policy and in good faith. 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 was suffering from Post-Traumatic Stress Disorder (PTSD) during your service. The AO noted that based on the available evidence, the preponderance of objective evidence failed to establish you were diagnosed with a mental health condition, suffered from a mental health condition at the time of your military service, or your in-service misconduct could be mitigated by 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 assertions that due to unintelligent reasoning and your mental capacity at the time, you relied upon ill efficient advice, and the wrong information given. Additionally, that you did not receive a bad conduct or dishonorable discharge, and never received an upgrade of your discharge to honorable as promised. 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 your two NJP’s, the fact that you were counseled on more than one occasion, the referral of charges to a court-martial, and your request for discharge, outweighed these mitigating factors. The Board believed that considerable clemency was extended to you when your request for discharge was approved. Additionally, the Board concurred with AO that based on the available evidence, the preponderance of objective evidence failed to establish you were, diagnosed with a mental health condition, suffered from a mental health condition at the time of your military service, or your in-service misconduct could be mitigated by 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, 6/15/2021 Executive Director