DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 6694-20 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 4 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, an Advisory Opinion (AO) from a qualified mental health provider, 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). You enlisted in the Marine Corps on 28 June 1972. Your pre-enlistment physical examination on 8 June 1972 and self-reported medical history both noted no psychiatric or neurologic conditions or symptoms. On 4 October 1974 you received non-judicial punishment (NJP) for unauthorized absence (UA). On 4 June 1975 you received NJP for UA. On 8 June 1975 you suffered a head injury in an altercation with another Marine. You received sutures to close two wounds on your head. The corresponding medical record indicated that you did not lose consciousness as a result of your injuries. On 22 October 1975 you were convicted at a Special Court-Martial for UA lasting two days and drunk and disorderly conduct. On 14 January 1976 you were issued a “Page 11” counseling sheet advising you that you were not recommended for reenlistment due to frequent involvement with military authorities. On 3 February 1976 you received NJP for UA. On 10 May 1976 you were convicted in County Traffic Court in for driving under the influence of alcohol (DUI). On 12 May 1976 you received NJP for UA. On 23 June 1976 your separation physical noted no psychiatric or neurologic issues, conditions, or symptoms. At the expiration of your active obligated service (EAS), on 29 June 1976 you were separated from the Marine Corps with a general (under honorable conditions) (GEN) discharge and transferred to the Marine Corps Reserve. On 22 November 1977 the Marine Corps Reserve Forces Administrative Center notified you that given your limited mobilization potential you were going to receive an early discharge for the convenience of the government with a GEN characterization, the same you received upon your active duty EAS. As part of the Board review process, the BCNR Physician Advisor who is a licensed clinical psychologist (Ph.D.), reviewed your contentions and the available records and issued an AO dated 13 April 2021. The Ph.D. initially observed that you provided VA documentation of your service-connected rated disabilities to include tinnitus, bilateral hearing loss, traumatic brain injury (TBI), residual scalp scars, PTSD with residuals and TBI, and vertigo. The MD concluded by opining that there was sufficient evidence you exhibited behaviors associated with TBI during his military service and your misconduct may be mitigated by TBI. 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 believe you suffered mental health issues after being struck in the head; (b) but for that injury you would have an honorable discharge; and (c) you would like to die with an honorable discharge. 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 contrary to the AO that there was no nexus between any TBI or mental health-related symptoms and your misconduct, and determined that there was insufficient evidence to support the argument that any such mental health conditions or symptoms mitigated the misconduct that formed the basis of your discharge. As a result, the Board concluded that your serious misconduct was not due to mental health-related conditions or symptoms. Even if the Board assumed that your pattern of serious misconduct was somehow attributable to any mental health conditions, the Board unequivocally concluded that the severity of your misconduct far outweighed any and all mitigation offered by such mental health conditions. The Board determined the record clearly reflected that your misconduct was willful and demonstrated you were unfit for further service. The Board also determined 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 observed that character of military service is based, in part, on conduct and overall trait averages which are computed from marks assigned during periodic evaluations. Your overall active duty trait average was 3.60 in conduct. Marine Corps regulations in place at the time of your discharge required a minimum trait average of 4.0 in conduct (proper military behavior), for a fully honorable characterization of service. The Board concluded that your conduct marks during your active duty career were a direct result of your pattern of serious misconduct, which justified your GEN characterization of discharge. 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 other than honorable conditions (OTH) or GEN is generally warranted for misconduct, and is appropriate when an active duty record includes 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 cumulative misconduct clearly merited your receipt of a GEN discharge. 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, 6/11/2021