DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No. 6443-20 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 limitation 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 11 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, 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). Additionally, the Board also considered the advisory opinion (AO) furnished by a qualified mental health provider, which was previously provided to you. Although you were afforded an opportunity to submit an AO rebuttal, you did not do so. The Board determined that your personal appearance, with or without counsel, would not materially add to their 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 on 14 August 1979. Your pre-enlistment physical examination on 17 July 1979 and self-reported medical history both noted no psychiatric or neurologic conditions or symptoms. On 7 October 1980 you were convicted at a Summary Court-Martial (SCM) of the wrongful possession of a habit forming narcotic drug. As punishment you were sentenced to restriction, forfeitures of pay, and suspended confinement and reduction in rank. On 17 December 1980 you were convicted at a second SCM of two separate specifications of disobeying a lawful order in connection with driving a government vehicle, and for the destruction of military property. As punishment you received forfeitures of pay and a revocation of your government vehicle operator’s permit. On 29 September 1981 you received non-judicial punishment (NJP) for two specifications of unauthorized absence (UA). You did not appeal your NJP. On 13 April 1982 you received NJP for UA. You did not appeal your second NJP. On 26 April 1982 you were notified of administrative separation proceedings by reason of misconduct due to frequent involvement of a discreditable nature with military authorities. You consulted with military counsel and elected to waive your rights to submit a written statement on your behalf and to present your case to an administrative separation board. In the interim, your command issued you a “Page 11” counseling sheet informing you that you were being recommended for administrative discharge by reason of misconduct due to frequent involvement of a discreditable nature with military authorities. On 3 August 1982 the command Staff Judge Advocate found your separation was legally and factually sufficient. On 12 August 1982 your separation physical examination and self-reported medical history both noted no psychiatric or neurologic conditions or symptoms. Ultimately, on 12 August 1982 you were discharged for a pattern of misconduct with an other than honorable conditions (OTH) characterization of service and assigned an RE-4 reentry code. On 16 September 1994 the Naval Discharge Review Board determined that your OTH discharge was proper as issued and no change was warranted. On 23 June 1996 the Board denied your initial BCNR petition for relief. You had contended to the BCNR that you should have received a medical discharge. However, the Board denied relief in part because the Board determined that your separation physical found you physically fit for discharge and also noted that there was no indication in your service record a medical board was pending for you. As part of the Board review process, the BCNR Physician Advisor who is a medical doctor and Fellow of the American Psychiatric Association (MD), reviewed your contentions and the available records and issued an AO dated 28 April 2021. The MD initially observed that although you contended you had PTSD, you did not describe any traumatic events, psychological symptoms or behavioral changes indicative of PTSD, and you did not describe any adverse effects on your ability to serve or explain any relationship between PTSD and your active duty misconduct. The MD determined that your in-service records did not contain evidence of a mental health diagnosis or psychological/behavioral changes indicating a mental health condition. The MD also noted that throughout your disciplinary actions, separation physical examination, and administrative processing, there were no concerns cited warranting referral to mental health resources. The MD determined that although you argued you had a post-discharge PTSD diagnosis, you did not present any clinical evidence for such diagnosis or indicate how the condition interfered with your ability to function. The MD concluded by opining that the preponderance of objective evidence failed to establish you suffered from a mental health condition on active duty or that your misconduct could be mitigated by a mental health condition. The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in your case in accordance with the Kurta, Hagel, and Wilkie Memos. These included, but were not limited to your contentions that: (a) you were told you would get a medical discharge due to your knee and mental issues; (b) you were dealing with mental issues and nothing was done to help you deal with such issues; (c) you didn’t receive the notification for the discharge hearing so the NDRB decided your fate without you present; (d) you didn’t realize your discharge was negative until you went to the VA for medical attention; (e) you were discharged only 3 months before your enlistment was up; and (f) you are currently receiving Social Security disability benefits for your service-connected PTSD. However, given the totality of the circumstances, the Board determined that your request does not merit relief. In accordance with the Kurta, Hagel, and Wilkie Memos, the Board gave liberal and special consideration to your record of service, and your contentions about any traumatic or stressful events you experienced and their possible adverse impact on your service. However, the Board concluded that there was no nexus between any PTSD and/or related symptoms and your misconduct, and determined that there was insufficient evidence to support the argument that any such mental health conditions were related to or mitigated the misconduct forming the basis of your discharge. As a result, the Board concluded that your misconduct was not due to mental health-related conditions or symptoms. Moreover, the Board observed that your Social Security documentation and post-service clinical records do not contain a PTSD diagnosis or make any reference to PTSD. The Board also determined that even if your pattern of misconduct was attributable to any mental health conditions, the severity of your misconduct outweighed any mitigation offered by such mental health conditions. The Board also concluded that the evidence of record did not demonstrate that you were not mentally responsible for your conduct or that you should otherwise not be held accountable for your actions. Additionally, the Board also noted that there is no provision of federal law or in Navy/Marine Corps regulations that allows for a discharge to be automatically upgraded after a specified number of months or years. The Board did not believe that your record was otherwise so meritorious as to deserve a discharge upgrade and determined that Marines should receive no higher discharge characterization than is due. The Board determined that characterization under OTH conditions is generally warranted for misconduct and is appropriate when the basis for separation is the commission of an act or acts constituting a significant departure from the conduct expected of a Marine. Lastly, absent a material error or injustice, the Board generally will not summarily upgrade a discharge solely for the purpose of facilitating VA benefits, or enhancing educational or employment opportunities. The Board carefully considered any matters submitted regarding your post-service conduct and accomplishments. However, even in light of the Wilkie Memo and reviewing the record holistically, the Board still concluded that given the totality of the circumstances your request does not merit relief. Accordingly, the Board determined that there was no impropriety or inequity in your discharge, and even under the liberal consideration standard, the Board concluded that your pattern of misconduct clearly merited your receipt of an OTH. 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, 6/17/2021 Executive Director