Docket No: 6521-20            
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 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 10 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 29 April 2021 advisory opinion (AO) from a mental health professional. 
 
You enlisted in the Marine Corps on 10 January 1979.  On 31 August 1979, you received nonjudicial punishment for being incapacitated for the performance of duty.  On 30 June 1980, you received nonjudicial punishment (NJP) for unauthorized absence, and you again received NJP on 6 August 1980 for being absent from your appointed place of duty.  On 27 August 1980, you received NJP for unauthorized absence, disobeying a lawful order, and for being found drunk on duty.  Again on 7 April 1981, you received NJP for four instances of failing to go to your duty, and again on 10 February 1982 for a short unauthorized absence.  On 6 October 1982, you were found guilty in a civilian court for driving a vehicle under the influence.  You were notified of the initiation of administrative separation processing on 14 January 1983, and you waived your right to an administrative board.  On 18 January 1983, your commanding officer recommended that you be discharged with an other than honorable characterization of service.  On 8 February 1983, the discharge authority concurred and directed you be discharged with an other than honorable characterization of service, and on that day you were so discharged.   
 
In 1984, you filed an application for review of your discharge with the Naval Discharge Review Board (NDRB).  In your application, you contended that your discharge was illegal because you did not receive a discharge physical, that you were never convicted of any drug offenses, that your health condition at the time of your discharge precluded your discharge, and that your discharge was effected one day before your end of active obligated service.  On 19 July 1984, the NDRB denied your application.  You previously submitted a petition with this Board in 2008, in which you contended that you were deprived of the right to counsel in connection with your discharge, and on 13 August 2009, this Board denied your petition.  In 2017, you again filed a petition with this Board contending that you were erroneously accused of being a drug abuser, that you should be able to receive basic benefits from the Department of Veterans Affairs, that you were deprived of counsel in connection with your discharge, and that you were forced to accept the discharge by your command.  On 11 October 2018, this Board denied your second petition.   
 
The Board carefully considered all potentially mitigating factors in your current petition to determine whether the interests of justice warrant relief in your case including in accordance with the Wilkie Memo.  In your current petition, you contend that you were mentally incompetent to continue your enlistment without professional psychiatric assistance and that you should have received psychiatric treatment due to the sudden changes in your life that resulted from a leg injury.  You explained that while in the Marine Corps, you made decisions that were not normal for you, and that you are now receiving psychological help. 
 
In light of your assertion of a mental health condition, the Board received, and reviewed, the 29 April 2021 AO.  The Board’s mental health professional reviewed your naval records as well as all of the materials that you submitted, and concluded that there is sufficient direct evidence that you experienced initial symptoms of PTSD and Major Depression during your military service.  The AO concluded that your mental health conditions may have mitigated your in-service misconduct.  
 
In review of all of your materials, the Board determined that the relief you seek is not warranted.  The Board did not concur with the AO’s finding that your asserted mental health condition mitigated your in-service misconduct.  Specifically, the Board found that you did not provide sufficient evidence that the injury you asserted occurred while you were on active duty mitigated the misconduct that you engaged in while on active duty.  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 as well as a civilian conviction, 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, 
  
5/16/2021
Executive Director