DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 5199-20 Ref: Signature Date Dear Petitioner: 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 relevant portions of your naval record and your application, 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 your application was not filed in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your application on its merits. A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 9 July 2021. The names and votes of the members of the panel 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, 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). Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to its 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 and began a period of active duty on 14 December 2009. In August 2011, Medical Evaluation Board recommended that you be referred to the Central Physical Evaluation Board and you subsequently began the Disability Evaluation System (DES) process with diagnoses of bipolar disorder, MRE depressed, ADHD, and alcohol dependence in full remission. Your Commanding Officer issued a Non-Medical Assessment (NMA) which noted you suffered from chronic back pain that radiated down your right leg. The NMA further stated that you did not have good potential for continued service due to manic depressive illness, chronic lower back pain, ADHD, and alcohol dependence. On 31 August 2011, your CO, recommended that you be expeditiously processed for administrative separation by reason of fraudulent enlistment. On 13 September 2011, you acknowledged your rights; following your acknowledgment you consulted with counsel and requested an administrative separation board. During your administrative separation processing for fraudulent entry, you were receiving treatment from for lower back pain. On 31 January 2012, Department of the Navy, Naval Hospital recommended that you be separated on the basis of unsuitability for convenience of the government with a diagnosis of depression, not otherwise specified which was manifested by recurrent depressed mood, anxiety and overwhelming sadness. On 28 February 2012, you received nonjudicial punishment (NJP) for wrongful use of a controlled substance for testing positive for THC on a urinalysis. On 21 March 2012, you were notified of administrative separation proceedings against you on the basis of drug abuse and waived your right to appear before an administrative separation board. On 21 March 2012, you waived your right to appear before an administrative separation board. On 23 March 2012, CO, , stated that retention is not in the best interest of the Marine Corps due to drug abuse. On 4 May 2012, you were discharged from the Marine Corps on the basis of Misconduct, and received an other than honorable discharge and a reentry (RE) code of RE-4B. On 30 August 2019, the Naval Discharge Review Board (NDRB) determined that your discharge should be upgraded to a general characterization of service but that your narrative reason for separation should remain misconduct with a corresponding separation code of HKK1 and a reentry code of RE-4B. When making its determination, NDRB considered your claim of mental health condition, including Post Traumatic Stress Disorder (PTSD), and gave liberal consideration concerning your in-service and post-service mental health diagnoses. NDRB found your CO’s final discharge recommendation compelling and noted that your CO considered your depression disorder. NDRB also noted that you had no other misconduct aside from the NJP and that you maintained Proficiency and Conduct Marks of 4.0/4.0 throughout your enlistment. Your Certificate of Release or Discharge from Active Duty (DD Form 214) reflects general discharge characterization. In your application to the Board, you request that your Integrated Disability Evaluation System (IDES) case be re-opened and processed appropriately. You also ask that your characterization of service be upgraded to honorable, that your narrative reason for separation be changed to Secretarial Authority, that your separation code be changed, that your RE-4B be changed, that your basis for separation be changed, and that you receive any other relief that is equitable and just. You contend that your IDES case was erroneously cancelled. You also assert that at the time of your misconduct, you were suffering from bipolar disorder which qualifies you for consideration and relief pursuant to the Hagel memorandum. You assert that the characterization of service and the narrative reason were not equitable, especially when viewed in light of your honesty, the totality of the facts and circumstances of your case, and your entire service record and your post-service conduct. You contend that: (a) while you were being processed for a medical discharge, your command initiated an administrative separation on the basis of fraudulent enlistment; (b) your command did not complete the NMA, and a Major within your chain of command had an ulterior motive, going as far as trying to switch your treatment providers; (c) a judge advocate became involved in your case and the administrative separation on the basis of fraudulent enlistment fell through and was dismissed, but while being seen at Management, you tested positive on a urinalysis; (d) Management faxed a copy of your recorders to the Marine Corps even after the DES process was terminated; and (e) you were undergoing mental anguish with mental health issues, chronic pain, a less than desirable command environment and because you were placed in the battalion’s administrative separation platoon, you felt the command was trying to set you up for failure. You note that you were advised by a new psychiatrist to obtain a Convenience of the Government Discharge and then apply to the Board for a disability discharge. You ask that the Board take into consideration your overall service at the time of your separation and your conduct post-discharge, to include graduating from the , being accepted to the for International Affairs at University, volunteering, and being an active member of the Student Veteran’s Association. You provide character statements in support of your application. 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. The Board also reviewed your petition in light of the Under Secretary of Defense’s memorandum, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations” of 25 July 2018. As part of the review process, a Medical Advisor reviewed your request, and issued an Advisory Opinion dated 21 March 2021. The Advisory Opinion noted that you provided ample documentation of your in-service mental health condition diagnosis and your subsequent treatment. You also submitted information about your 70% disability rating from Veterans Affairs (VA) for Major Depressive Disorder. The Advisory Opinion concluded that there is sufficient direct evidence that you exhibited behaviors associated with a mental health condition during your military service and that your misconduct may be mitigated by your mental health condition. The Board, in its review of your entire record and application, carefully weighed all potentially mitigating factors, including the information you provided about your command following your initial referral to the DES process, the various iterations of administrative separation to which you were subjected, the NDRB’s decision, your post-discharge accomplishments and contributions, and the findings of the Advisory Opinion. With regard to your request to re-open your IDES case and have your medical conditions as flagged in August 2011 and as documented in subsequent in-service records evaluated for a disability/medical separation or retirement, the Board noted that SECNAVINST 1850.4 series states that processing for administrative discharge for misconduct takes precedence over processing for disability. Even in consideration of your CO’s NMA and the 23 August 2011 Medical Evaluation Board’s recommendation that your case be referred to the Central Physical Evaluation Board, the Board determined that your misconduct of wrongful use as documented in your 28 February 2012 NJP supported an administrative separation on misconduct rather than through the DES process. The Board did take into consideration the fact that the positive urinalysis information came from your treatment records at the Management but found that the source of the wrongful use information did not negate the fact that you used a controlled substance without authorization while on active duty. The Board determined that the NJP was properly executed and served as a sufficient basis on which to notify you of administrative separation proceedings due to misconduct. With regard to your request for a change to your discharge to include and upgrade, change to narrative reason for separation, change to separation code, change to basis, change to RE code, and for any other relief that is equitable and just, the Board concurred with the determination of the Advisory Opinion and found that you did appear to suffer from mental health issues which mitigated your misconduct of wrongful use. However, the Board noted that your discharge had been upgrade from other than honorable to general by NDRB. The Board agreed with NDRB’s determination that even applying liberal consideration and taking into account the mitigating mental health issues, that a general discharge is appropriate rather than an honorable characterization of service. The Board concluded that an honorable discharge is not warranted because although your mental health conditions did mitigate your behavior, they did not completely excuse your misconduct of wrongful use of a controlled substance while on active duty. Accordingly, the Board found that a general discharge is appropriate and that further corrective action to your character of service is not warranted. The Board similarly determined that your narrative reason for separation, separation code, basis for separation and RE-4 code are appropriate given the nature of your wrongful use of a controlled substance. Even taking into account your mental health condition and noting your post-discharge achievements, the Board found that your current discharge with a general characterization of service on the basis of Misconduct, MARCORSEPMAN PAR 6210.5, HKK1 and RE-4B accurately reflects your in-service drug and provides a just and proper discharge from the Marine Corps. The Board concluded that based on the available evidence, that your current discharge is appropriate and does not merit an upgrade on the basis of clemency, nor does the current discharge reflect an error or an injustice. It is regretted that the circumstances of your case are such that favorable action cannot be taken. 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, 7/14/2021 Executive Director