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

Docket No: 5224-20 
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 12 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, 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). The Board also considered an advisory opinion (AO) from a qualified mental health professional dated 1 April 2021, which was previously provided to you. 

On 26 July 1978, prior to your enlistment in the Marine Corps, you disclosed on your preservice Report of Medical History that you had “frequent trouble sleeping and depression or excessive worry.” You then entered a period of active duty in the Marine Corps on 27 August 1978. On 10 January 1980 you were convicted by Summary Court-Martial (SCM) for two specifications of Article 86, failure to go to your appointed place of duty; two specifications of Article 91, disrespect to your superior NCO; two specifications of Article 92, disobeying a lawful order; Article 128, assault; and Article 134, breaking restriction. Your record is incomplete in that it does not contain the information pertaining to your administrative discharge. In such cases, the Board relies on a presumption of regularity to support the official actions of public officers, and in the absence of substantial evidence to the contrary, will presume that they have properly discharged their official duties. Based on your Certificate of Release or Discharge from Active Duty, you were separated from the Marine Corps in or about August 1980, under other than honorable conditions in order to escape trial by court-martial. 

You contend your tour in  resulted in you developing depression and sleeping problems. You state that during the time of discharge and the situation that led up to it, you sincerely wanted to continue to serve. You further contend the majority of the time you served was in an honorable manner. 

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 contentions noted above, desire to upgrade your discharge, and your community service. The Board also relied on the AO in making its determination. The AO noted that although you contend you suffered from depression during your tour of duty in    , you did not provide a description of symptoms or indicate how they interfered with your ability to function. The lack of information makes it difficult to establish an onset and development of mental health symptoms or to identify a nexus with your misconduct. The AO concluded that the preponderance of available objective evidence failed to establish you were diagnosed or suffered from a mental health condition at the time of your military service, or that your in-service misconduct could be mitigated by a mental health condition. Based upon this review, the Board concluded that these potentially mitigating factors were insufficient to warrant relief. Specifically, the Board determined that your misconduct, as evidenced by your SCM, outweighed these mitigating factors. 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, 
5/26/2021 

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