Department of the Navy Board For Correction of Naval Records 701 S Courthouse Road Suite 1001 Arlington Va 22204-2490 Docket No: 7211-20 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 relevant portions of your naval record and your application, 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 your application was not filed in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your application on its merits. A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 9 July 2021. The names and votes of the members of the panel 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 25 July 2018 guidance from the Under Secretary of Defense for Personnel and Readiness regarding equity, injustice or clemency determinations (Wilkie Memo). Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to its 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 and began a period of active duty on 12 September 2000. On 26 January 2001, you received a Meritorious Promotion. On 20 February 2002, you received nonjudicial punishment (NJP) for violating Article 91 (repeatedly disobeying corporal’s orders to refrain from pursuing a lance corporal for the purpose of physical confrontation), Article 117 (grabbing a lance corporal by the ear with intent to provoke a physical confrontation), Article 128 (assaulting a lance corporal by striking him repeatedly about the face and head), and Article 134 (verballing threatening a lance corporal). On 3 April 2002, you received a second NJP for violating restriction. On 13 August 2002, you received a third NJP for shouting and using profane language toward a corporal and refusing to keep quiet when ordered to do so by a corporal. On 9 October 2002, Commanding Officer, notified you of administrative separation proceedings against you. You acknowledged your rights on 10 October 2002, and waived your right to appear before an Administrative Separation Board. On 22 November 2002, you were discharged from the Marine Corps on the basis of Misconduct, and received an other than honorable discharge and a reentry (RE) code of RE-4. In your application to the Board, you request an upgrade to your discharge characterization and a change to your RE-4. You stated that your time as a Marine was the most valuable experience of your life. You contend that at the time, you were not mature enough or emotionally stable enough to fully understand and take advantage of what you were given. You state that you had anger management issues and needed professional counseling, and that although you had your share of issues, you were an asset to every unit you were a part of. You assert that about 11 years ago you hit rock bottom. You note that with a change in lifestyle, extensive self-assessment, and the support of your family, you have been able to achieve personal and professional success, and are the healthiest you have been mentally, emotionally and physically. You would like to be an asset to the Armed Forces and give back to the country that has given you so much. You provide supporting documents with your application, including character letters which note your work ethic, versatility, and dependability. Your request was fully and carefully considered by the Board in light of the Secretary of Defense’s Memorandum, “Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requested by Veterans Claiming Post Traumatic Stress Disorder” of 3 September 2014, and the “Clarifying Guidance to Military Discharge Review Board and Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modification of their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment” memorandum of 25 August 2017. The Board also reviewed your petition in light of the Under Secretary of Defense’s memorandum, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations” of 25 July 2018. In December 2020, you submitted a communication to the Board and noted that you had requested your in-service medical treatment records from Headquarters Marine Corps in but had yet to receive the records. You stated that when you received NJP for a third time, you were sentenced in part to CCU for 30 days where you were evaluated and disclosed you had thoughts of harming yourself and others. You also noted that your mental health and stability were evaluated during mandated sessions with the chaplain and civilian mental health specialists. As part of the review process, a Licensed Clinical Psychologist reviewed your request, and issued an Advisory Opinion dated 21 April 2021. The Advisory Opinion noted that while your in-service record supports your contention that you had anger management issues, your record does not appear to reflect evidence which would meet the criteria of a mental health condition. Accordingly, the Advisory Opinion concluded that the preponderance of available evidence failed to establish that you were diagnosed with a mental health condition, suffered from a mental health condition at the time of your military service, or that your in-service misconduct could be mitigated by a mental health condition. The Advisory Opinion was provided to you, and you were given 30 days in which to submit a response. When you did not provide a response within the 30-day timeframe, your case was submitted to the Board for consideration. The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in your case in accordance with the Wilkie Memo. The Board reviewed your submissions, the available records, and the Advisory Opinion, and substantively concurred with the determination of the Advisory Opinion that there is insufficient evidence on which to find that you were diagnosed with or suffering from a mental health condition while you were in the Marine Corps that mitigated your in-service misconduct. The Board determined that the three NJPs that you received for various infractions supported the issuance of an other than honorable discharge and an RE-4. The Board considered your desire to return to military service, but concluded that your current discharge was proper as issued, and does not reflect either an error or an injustice. Based upon this review, the Board concluded these potentially mitigating factors were insufficient to warrant relief. Accordingly, given the totality of the circumstances, the Board determined that your request does not merit relief. 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, 7/16/2021 Executive Director