Docket No:  4687-20 
             

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.     
  
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 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 29 March 2021, which was previously provided to you. 
   
You enlisted in the Marine Corps and began a period of active duty on 7 October 1969.  On 22 February 1971, you were convicted by special court-martial (SPCM) of 228 days of unauthorized absence (UA).  You were sentenced to confinement at hard labor, a forfeiture of pay, a reduction in paygrade, and a bad conduct discharge (BCD).  On 5 March 1971, the convening authority approved the sentence but suspended the BCD for the period of confinement and six months thereafter.  During the period from 5 May 1972 to 9 January 1974, you received three nonjudicial punishments (NJPs) for two periods of UA and being absent from your appointed place of duty.  Based on your Certificate of Release or Discharge from Active Duty (DD Form 214) you were discharged from the Marine Corps on 16 January 1975, with an other than honorable characterization of service.  Your original service record was incomplete and did not contain any documentation pertaining to your separation from the Marine Corps service.     Absent evidence to the contrary, 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 were suffering from Post-Traumatic Stress Disorder (PTSD) during your service.  The AO noted that based on the available evidence, the preponderance of available 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 of untreated and undiagnosed PTSD.  The Board concluded these potentially mitigating factors were insufficient to warrant relief.  Specifically, the Board determined that your misconduct, as evidenced by your SPCM conviction, the fact that your sentence to a BCD was suspended for a period of time, allowing you the opportunity to earn a better characterization of service, and three NJPs thereafter, outweighed these mitigating factors.  Additionally, the Board concurred with the AO that based on the available evidence, the preponderance of available objective evidence failed to establish that 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