DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 7156-20 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 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 25 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 originally enlisted in the Marine Corps on 14 July 1982. Your pre-enlistment physical examination on 17 September 1981 and self-reported medical history both noted no psychiatric or neurologic conditions or symptoms. On 14 February 1986 you reenlisted for six additional years. On 22 August 1991 the Commandant of the Marine Corps (CMC) directed that your certificate of appointment to Staff Sergeant (E-6) be held in abeyance upon final action of a possible Special Court-Martial (SPCM) for certain misconduct involving the trafficking/smuggling of illegal aliens on board . However, in lieu of pursuing criminal charges against you at a SPCM, on 28 October 1991 your command notified you of administrative separation proceedings by reason of misconduct due to the commission of a serious offense. You waived your right to consult with military counsel, but elected to present your case to an administrative separation board (Adsep Board). In your Adsep Board notification letter, your commanding officer (CO) specifically stated: The basis for this recommendation is your apprehension on 4 June 1991 for alien smuggling aboard MCB . Subsequent to his apprehension, you admitted to a Special Agent of the Naval Investigative Service by a sworn statement that you had engaged in alien smuggling on previous occasions as well. On 11 November 1991 prior to your Adsep Board, your CO recommended to the separation authority that you be discharged from the Marine Corps with an other than honorable (OTH) characterization of service by reason of the commission of a serious offense. The CO stated in his recommendation: On 4 June 1991, Sergeant [R] was interview[ed] by a Criminal Investigator in regards to illegal alien smuggling through the base. In his sworn statement, Sergeant [R] admitted that on more than one occasion he transported a total of three to five illegal aliens through . These charges were reffered [sic] for trial to a Special Court-Martial…these charges were withdrawn and dismissed without prejudice because a key government witness could not be located. The actions of Sergeant [R] are a clear violation of the special trust and confidence we expect in our Marines, especially Non-Commissioned Officers. On 19 December 1991 an Adsep Board convened in your case. At the Adsep Board you were represented by a Marine Corps Judge Advocate. Following the presentation of evidence and witness testimony, the Adsep Board members unanimously determined that you the committed misconduct as charged. Subsequent to the unanimous misconduct finding, the Adsep Board members unanimously recommended that you be separated from the naval service with an OTH characterization of service. The separation authority initially concurred with the Adesp Board OTH recommendation, but upon further reconsideration the separation authority approved and directed a general (under honorable conditions) (GEN) discharge. In the interim, the CMC permanently administratively deleted your name from the Staff Sergeant selection list. Ultimately, on 6 March 1992 you were discharged from the Marine Corps for misconduct with a GEN characterization of service and assigned an RE-4 reentry code. On 1 February 2017 the Board denied your initial BCNR petition for relief. You had argued to the BCNR that it was your wife’s actions of transporting undocumented individuals on and not your own, and that your SPCM was dismissed so you should be reinstated on the E-6 promotion list. However, the Board denied relief, in part, because you admitted to investigators that you committed certain similar serious misconduct. As part of the Board review process, the BCNR Physician Advisor who is a licensed clinical psychologist (Ph.D.), reviewed your current contentions and the available records and issued an AO dated 26 April 2021. The Ph.D. initially observed that you stated in your application that you did not think that your mental health abilities impacted your ability to serve. The Ph.D. noted that your description of onset of symptoms appeared to be associated with your discharge and adjusting to civilian life, and that you also noted you have not received any PTSD treatment and cope well by staying busy and focusing on work. The Ph.D. 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 Ph.D. also noted that throughout your disciplinary actions and administrative processing, there were no concerns cited warranting referral to mental health resources. The Ph.D. concluded by opining that the preponderance of available 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 unfairly held accountable for your wife’s actions; (b) the quality of your service met the standard of acceptable conduct and performance for military personnel or was otherwise so meritorious that the characterizations of service given was inappropriate; (c) aside from this discharge, there is nothing negative on your military record; (d) your misconduct was an isolated incident and did not arise to the present standards for such GEN characterization; (e) you never illegally transported anyone across the base and you were held accountable for your wife’s actions; (f) you were a stellar Marine and this was an isolated incident that had nothing to do with your ability to serve; and (g) the charges against you were an aberration and not indicative of your overall character. 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 convincing evidence that you suffered from any type of mental health condition while on active duty, or that any such mental health conditions or symptoms were related to or mitigated the misconduct that formed the basis of your discharge. As a result, the Board concluded that your misconduct was not due to mental health-related symptoms. Moreover, the Board observed that you did not submit any clinical documentation or treatment records to support your mental health claims despite a request from BCNR on 22 October 2020 to specifically provide additional documentary material. 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. The Board noted that the record reflected that on the day your wife was being questioned concerning her involvement in the smuggling/trafficking of illegal aliens on board in June 1991, you subsequently admitted to investigative authorities that you knowingly engaged in this very same or similar activity with a former service member having the last name on previous occasions. The Board determined that your removal from the E-6 promotion list was proper and in compliance with all applicable Department of the Navy and Marine Corps policy and regulations. Your promotion to E-6 was initially held in abeyance pending adjudication at a possible SPCM. However, your command instead decided to pursue an administrative disposition with your case. The Adsep Board’s unanimous determination you committed the misconduct as charged acted as the functional equivalent of a guilty SPCM finding for purposes of permanently administratively removing you from a promotion list and justified the Marine Corps’ removal actions in this regard. The fact that your case did not ultimately go to a SPCM did not preclude the Marine Corps whatsoever from using the results of your Adsep Board to withhold your promotion. The Board noted that the record reflects you admitted to having two post-USMC criminal convictions. The first was for sexual battery and sex with a minor in 1999 (which you contend was subsequently overturned and expunged), and the second conviction was for being in possession of weapons as a convicted felon in 2007. 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 noted that, although one’s service is generally characterized at the time of discharge based on performance and conduct throughout the entire enlistment, the conduct or performance of duty reflected by only a single incident of misconduct may provide the underlying basis for discharge characterization. The Board determined that characterization under OTH or GEN conditions 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 serious misconduct clearly merited your receipt of a GEN characterization and no higher. 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, 7/2/2021 Executive Director