Docket No: 5192-20 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 limitations 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 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 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 2 April 2021 advisory opinion (AO) from a mental health professional, a copy of which you received and to which you did not provide a response. You enlisted in the Marine Corps on 22 July 1969. You received nonjudicial punishment on 12 March 1970 for failing to go to your place of duty. You received nonjudicial punishment again on 24 April 1970 for two instances of absenting yourself from your place of duty. You served in the Republic of Vietnam, and participated in Operation Da Nang from 2 September 1970 to 24 September 1970. You were awarded the Vietnam Service Medal as well as the National Defense Service Medal during your enlistment. On 14 July 1971 you were convicted by a general court-martial for lifting a weapon toward a commissioned officer, willfully disobeying an order to disperse, and assaulting a private first class. Your sentence included to be confined for four years as well as to be discharged with a bad conduct discharge. The convening authority in your court-martial approved one year of confinement. On 25 August 1972, your bad conduct discharge was executed and you were so discharged. 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 you have been dealing with PTSD, and you believe that your PTSD might have mitigated your misconduct that you engaged in while on active duty. You also contend that you were the victim of racial discrimination, and that you were treated differently on account of your race, including that your punishment was too harsh. You provided documentation that you have been diagnosed with PTSD post-service. In light of your assertion of a mental health condition, the Board received, and reviewed, the 2 April 2021 AO. The AO reviewed your naval records as well as all of the materials that you submitted, and explained as follows: Petitioner’s in-service records did not contain evidence of a diagnosis of a mental health condition or psychological/behavioral changes; however, records did indicate he suffered from some depressive symptoms. Petitioner does not contend, in his personal statement, his depressive symptoms attributed to his misconduct, but rather racial discrimination was the driving factor behind his conviction for his reported misconduct. The AO concluded that, “it is my considered medical opinion, although Petitioner may have suffered from subclinical depressive symptoms while in-service and was diagnosed with PTSD post-discharge, the preponderance of available objective evidence failed to establish his in-service misconduct could be mitigated by a mental health condition.” In review of all of your materials, the Board did not find sufficient evidence of an injustice in your record warranting relief. The Board concurred with the finding of the AO. Specifically, the Board found that you did not provide sufficient evidence that your asserted diagnosis of PTSD or racial discrimination mitigated the misconduct that you engaged in while on active duty. The Board also noted that you did not provide sufficient evidence of post-service accomplishments for the Board to make a finding of post-service clemency in accordance with the Wilkie Memo. In conclusion, given the totality of the circumstances, as well as a review of your overall service record, which included the imposition of nonjudicial punishment on two occasions as well as a conviction by a general court-martial conviction, 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, 6/15/2021 Executive Director