DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 

Docket No: 4966-20 
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 14 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, 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). 

You enlisted in the Marine Corps on 27 September 1982. Your pre-enlistment physical examination on 30 June 1982 and self-reported medical history noted no neurologic or psychiatric conditions or symptoms. The Board noted that you denied bed wetting since age 12 on your pre-enlistment medical history. However, your active duty medical treatment records clearly documented that you admitted to being a lifelong bed wetter noting a frequency of approximately three times a week or month. 

On 9 September 1983 you received a “Page 11” counseling sheet (Page 11) for public intoxication. On 19 December 1983 you received non-judicial punishment (NJP) for failing to obey a lawful order by drinking in the barracks. On 20 June 1984 you received another Page 11 for frequent involvement of a discreditable nature with military authorities as a result of alcohol-related problems. The Page 11 expressly warned you that a failure to take corrective action may result in administrative separation or judicial proceedings. 

On 28 November 1984 you were counseled on the Uniform Code of Military Justice Article 87 missing movement provisions, and you acknowledged that your unit was scheduled to deploy to ,    on 1 December 1984. On both 24 and 31 January 1985 you received Page 11 entries stating you were eligible, but not recommended for promotion to Corporal because of unsatisfactory conduct due to driving under the influence of alcohol. 

On 8 February 1985 you were convicted at a Summary Court-Martial of assaulting another Marine, and for missing the movement of your unit to     on 1 December 1984. As punishment you received thirty days of confinement and were reduced in rank to the lowest enlisted paygrade (E-1). On 14 June 1985 you received NJP for UA. On 6 August 1985 you received NJP for UA. On 6 August 1985 you received a Page 11 for frequent involvement with military authorities. The Page 11 expressly warned you that a failure to take corrective action may result in administrative separation. However, on 27 August 1985 you received NJP for breaking restriction, insubordinate conduct, and failing to obey a lawful regulation.

On 23 September 1985 you were placed in pre-trial confinement awaiting trial for multiple UA offenses. 
On or about 9 October 1985 you submitted a voluntary written request for an administrative discharge in lieu of trial by court-martial for sixty-five (65) separate UA specifications for failing to go to restricted muster. Prior to submitting this voluntary discharge request you conferred with a qualified military lawyer, at which time you were advised of your rights and warned of the probable adverse consequences of accepting such a discharge. As a result of this course of action, you were spared the stigma of a court-martial conviction for your multiple UAs, as well as the potential sentence of confinement and the negative ramifications of receiving a punitive discharge from a military judge. Ultimately, on 14 November 1985 you were separated from the Marine Corps with an other than honorable conditions (OTH) discharge and assigned an RE-4 reentry code. 

On 18 September 2018 the Board denied your initial petition for relief. As part of the Board review process for your current petition, the BCNR Physician Advisor who is a licensed clinical psychologist (Ph.D.), reviewed your contentions and the available records and issued an AO dated 26 March 2021. The Ph.D. initially observed that your active duty record revealed you received an electric shock while working in November 1983, and that such incident was the purported trauma leading to your PTSD symptoms. The Ph.D. also observed that the VA granted you service-connection for treatment purposes only for PTSD due to the electric shock. The Ph.D. determined that you exhibited some behaviors indicative of PTSD that would mitigate some, but not all, of your misconduct. The Ph.D. concluded by opining that the available objective evidence indicated that you exhibited behaviors associated with a mental health condition on active duty and that some of your misconduct may be mitigated by your 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: (a) you received an electric shock while your HST unit was assisting at a landing zone (LZ) for a CH-53 helicopter, (b) you suffered PSTD as a result of the electric shock, (c) you are a homeless veteran, and (d) you still suffer from symptoms related to the LZ incident. 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 despite the AO that there was no nexus between any PTSD or PTSD-related symptoms and the majority of your misconduct, and determined that there was insufficient evidence to support the argument that any such mental health conditions or symptoms were related to or mitigated the misconduct that formed the basis of your discharge. As a result, the Board concluded that your misconduct was not due to mental health-related symptoms. The Board determined the record clearly reflected that your misconduct was willful, deliberate, and repetitive and demonstrated you were unfit for further service. The Board also determined that the evidence of record did not demonstrate that you were not mentally responsible for your conduct or that you should otherwise not be held accountable for your actions. 

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. 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 generally warranted for misconduct and 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. Lastly, 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.
 
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 serious misconduct clearly merited your receipt of an OTH, and that your separation was in accordance with all Department of the Navy directives and policy at the time of your discharge. 

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, 
5/20/2021 

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