Docket No: 4849-20 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. 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 Under Secretary of Defense for Personnel and Readiness regarding requests by Veterans for modification of their discharge due to mental health conditions, sexual assault, or sexual harassment (Kurta Memo). 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 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, and applicable statutes, regulations, and policies, including 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 also requested and reviewed a 6 April 2021 advisory opinion (AO) from a mental health professional, a copy of which was provided to you, and to which you did not provide a response. 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 17 January 1995. On 26 July 1996, you were convicted by a summary court-martial for disrespect toward an officer and for being derelict in the performance of your military police duties. On 7 August 1997, you received nonjudicial punishment for sleeping on post. Your naval records do not contain your administrative separation documents, but the Board applies a presumption of regularity in such matters, and you would have been provided notice of the initiation of administrative separation processing setting forth your rights prior to your discharge. You were discharged on 3 December 1997, with an other than honorable characterization of service based on misconduct. The Board carefully considered all potentially mitigating factors in your petition to determine whether the interests of justice warrant relief in your case including in accordance with the Wilkie Memo. You contend in your petition that, while in the Marine Corps, you were a “first responder” and that you had seen a lot during your time in the Marine Corps. In light of your assertion of a mental health condition, the Board received, and reviewed, the 6 April 2021 AO. The AO reviewed your naval records as well as all of the materials that you submitted, and explained that: Petitioner’s in-service records did not contain evidence of a diagnosis of a mental health condition or psychological/behavioral changes, which may have indicated a mental health condition. Throughout his disciplinary actions, counselings, and administrative processing, there were no concerns noted which would have warranted referral to mental health resources. Although Petitioner claimed he suffered from undiagnosed PTSD, he did not provide any description of in-service traumatic stressors or mental health symptoms, which would meet the criteria for PTSD or other mental health conditions. There is no indication in his military service record or his personal statement his misconduct was the result of a mental health condition. The AO concluded, “it is my considered medical opinion the preponderance of available objective evidence failed to establish Petitioner was diagnosed with a mental health condition, suffered from a mental health condition at the time of his military service, or his in service misconduct could be mitigated by a mental health condition.” In review of all of your materials, the Board concurred with the AO and determined that there is no evidence, nor did you provide any, that you had mental health issues during your enlistment that mitigated your misconduct, which resulted in your discharge. The Board noted that you did not provide any supporting documentary attachments to your petition, nor did you provide any materials concerning your post-discharge activities. In conclusion, given the totality of the circumstances, in light of the finding of the AO, as well as a review of your overall service record, the Board determined that your request does not merit relief. You are entitled to have the Board reconsider its decision upon the 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