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

Docket No: 5311-20 
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 7 April 2021 advisory opinion (AO) from a mental health professional. 

You enlisted in the Marine Corps on 12 July 1967. According to the combat history in your official military personnel file, from 31 March 1970 to 9 May 1970, you participated in three named combat expeditions in Vietnam. Among other awards you received during your service, as a result of your service in Vietnam, you were awarded the Vietnam Service Medal (two stars), the Republic of Vietnam Meritorious Unit Commendation (with Palm), and the National Defense Service Medal. On 17 February 1970, you received nonjudicial punishment for unauthorized absence. On 5 May 1970, you received nonjudicial punishment for assaulting a commissioned officer and resisting apprehension. On 16 June 1970, you received nonjudicial punishment for unauthorized absence and violating a written order. On 16 September 1970, you were convicted by a summary court-martial for a 16 day period of unauthorized absence. On 9 December 1970, you were convicted again by a summary court-martial for 12 total days of unauthorized absence. On 14 April 1971, you received nonjudicial punishment for willfully disobeying an order and for communicating a threat. You completed your active duty enlistment with the Marine Corps on 23 June 1971, and, based on your record of service, you were issued a general (under honorable conditions), characterization of service. 

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 that you suffer from PTSD as a result of your service in Vietnam and you did not know about it until you were diagnosed in 2010. You also contend that your combat experiences had a lot to do with your conduct after the war and it still impact you to this day. You included a copy of your disability rating and materials from the Department of Veterans’ Affairs (VA). 

In light of your assertion of a mental health condition, the Board received, and reviewed, the 7 April 2021 AO. The AO reviewed your service and medical records as well as all of the materials that you submitted. The AO explained that: His misconduct occurred after his return from Vietnam. While confined, Petitioner reached out to his congressional representative for help regarding his discharge characterization of service. Within the letter he essentially described having difficulty adjusting after returning from Vietnam and volunteered to return. It is common for persons with PTSD to demonstrate maladaptive coping strategies (i.e., avoidance) and exhibit misconduct behaviors such as disrespect/failing to obey orders (distrust in authorities, impaired judgment). Petitioner provided documentation from the VA for a service connected evaluation of 50 percent for PTSD, which lends credibility to his contention. 

The AO concluded, “it is my considered medical opinion there is sufficient evidence Petitioner exhibited behaviors associated with PTSD during his military service and his misconduct may be mitigated by his PTSD.” In review of all of your materials, the Board did not find an injustice in your record warranting relief. The Board acknowledged the finding of the AO that your misconduct on active duty may be mitigated by your PTSD. The Board also commended you on your tour of service in Vietnam. The Board, however, also noted that you received a discharge under honorable conditions despite the extent and severity of your misconduct, which included two court-martial convictions and the imposition of nonjudicial punishment on four occasions, for a variety of misconduct, including, among others, assault on a commissioned officer and communicating a threat. The Board also observed that there was a lack of information in your official military personnel file from the years 1967 to 1970, which it would have found useful in rendering its decision. Should you obtain such information, you may provide this information to the Board and it will be reviewed in the context of your claim. 
 
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 

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