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

Docket No: 5729-20 
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 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 19 July 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 reviewed an 11 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 and commenced a period of active duty on 1 October 1974. On 23 September 1974, you received nonjudicial punishment for sleeping on post. On 20 November 1975, you received nonjudicial punishment for unauthorized absence. Between 22 November 1976 and 8 January 1977, you had three periods of unauthorized absence of varying lengths, and you surrendered to naval authorities after each period. On 16 January 1977, you received nonjudicial punishment for these periods of unauthorized absence as well as for refusing to obey an order. On 16 March 1977, you commenced another period of unauthorized absence, returning by your surrender to naval authorities on 8 December 1977, which amounts to approximately 266 days. On 21 December 1977, you submitted a request to be discharged, for the good of the service, in lieu of facing a trial by court-martial. On 3 January 1978, the convening authority granted your request, and on 9 January 1978, you were discharged with an other than honorable 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 in your petition that you suffered from depression while you were in the service, and that this mental health condition should have mitigated your misconduct while on active duty. 

In light of your assertion of a mental health condition, the Board received, and reviewed, the 11 April 2021 AO. According to the AO, 
Petitioner’s in-service records did not contain evidence of a diagnosis of a mental health condition or psychological/behavioral changes, which may have indicated a mental health condition. Throughout his disciplinary actions, counselings, and administrative processing, there were no concerns noted which would have warranted referral to mental health resources. 

Although Petitioner contended in-service depression, he did not describe any psychological symptoms or behavioral changes suggestive of depression, and attributed his maladjustment and misconduct to immaturity. Of note, Petitioner had endorsed “depression/excessive worry,” but no history of mental illness or treatment, on his enlistment physical exam (as well as his separation physical exam). He was deemed physically qualified on each. 

The AO concluded, “it is my considered medical opinion the preponderance of objective evidence failed to establish Petitioner suffered from a mental health condition at the time of his military service or his in-service misconduct could be mitigated by a mental health condition.” 

In review of all of your materials, the Board did not find an injustice in your record warranting relief. The Board concurred with the finding of the AO. 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 three occasions and a 266-day period of unauthorized absence, 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, 
7/21/2021