Docket No 8435-20 Dear Petitioner: 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 2 July 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 opinions (AO) furnished by a qualified mental health provider, the first of which was previously provided to you. You were afforded an opportunity to submit an AO rebuttal and you provided a rebuttal statement for consideration. You originally enlisted in the Marine Corps on 13 September 2001. Your self-reported pre-enlistment medical history noted no psychiatric or neurologic conditions or symptoms. Your pre-enlistment physical noted family counseling in 1998 for an adjustment disorder with depressed mood as well as prescriptions for both Depakote and Wellbutrin. You reenlisted on or about 5 July 2005. On 6 January 2004 your command issued you a “Page 11” counseling sheet (Page 11) documenting your failure to follow specific instructions/orders from your chain of command by not being at your appointed place of duty. The Page 11 warned you that a failure to take corrective action may result in administrative separation or judicial proceedings. On 31 January 2005 you received non-judicial punishment (NJP) for unauthorized absence lasting two days, and making a false official statement. On 10 January, 11 June, 18 July, 10 August, and 12 September 2006, respectively, your command issued you Page 11 counseling sheets informing you that you were eligible, but not recommended for promotion to Corporal (E-4) due to various adverse reasons. On 22 August 2006 you received NJP for the drunken operation of a vehicle (DUI) on board . On 24 August 2006 you received a Page 11 documenting a recommendation to the Substance Abuse Coordination Officer for counseling due to your DUI. On 16 July 2008 your command issued you a Page 11 documenting your failure to obey a lawful order or regulation due to driving in violation of your suspended on-base driving privileges. The Page 11 also warned you that any future Uniform Code of Military Justice violations and/or deficient performance may result in disciplinary action, administrative separation, and/or limitation on further service. On 16 July 2009 you were arrested by civilian authorities in on three (3) separate counts of attempted murder. The victims were your and your On 17 July 2009 you were notified of administrative separation proceedings by reason of misconduct due to the commission of a serious offense. The basis for the recommendation was your three (3) pending civilian charges for attempted murder. You elected to waive your rights to consult with counsel and to present your case to an administrative separation board. In the interim, the command Staff Judge Advocate determined your separation was legally and factually sufficient. Ultimately, on 31 July 2009 you were discharged for misconduct due to the commission of a serious offense with an other than honorable conditions (OTH) characterization of service and assigned an RE-4 reentry code. 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 4 May 2021. The Ph.D. initially noted that your in-service records do not contain evidence of a mental health diagnosis or psychological or behavioral changes indicating any mental health condition. The Ph.D. also noted that throughout your disciplinary actions, counselings, and administrative processing, there were no concerns noted warranting referral to mental health resources. The Ph.D. concluded by opining that the preponderance of available objective evidence failed to establish you were either diagnosed with or suffered from a service-connected mental health condition, or that your misconduct could be mitigated by a mental health condition. Following the submission of your two-page handwritten rebuttal statement, the Ph.D. issued a revised AO on 11 June 2021. The Ph.D. noted that while you exhibited some behaviors indicative of a mental health condition, your January 2005 misconduct occurring before your deployment would not be mitigated by his mental health symptoms/condition. The Ph.D. concluded by opining that the evidence indicated you exhibited some behaviors associated with a mental health condition on active duty and some of your misconduct may be mitigated by your 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 Hagel, Kurta, and Wilkie Memos. These included, but were not limited to your contentions that: (a) you contend you were diagnosed with PTSD and major depressive disorder on active duty and also suffer from anxiety; and (b) following your deployment you began doing drugs and drinking heavily to self-medicate. However, given the totality of the circumstances, the Board determined that your request does not merit relief. In accordance with the Hagel, Kurta, 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 revised AO, that there was no nexus between any mental health conditions and/or related symptoms and your misconduct, and determined that there was insufficient evidence to support the argument that any such mental health conditions mitigated any of 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 conditions or symptoms. Even if the Board assumed that your egregious 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 intentional, showed a reckless disregard for human life, and demonstrated you were unfit for further service. Moreover, the Board unequivocally concluded that your premediated misconduct was not excused by any mental health conditions. 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 not be held accountable for your actions. The Board 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. Additionally, 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. 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 depraved-heart misconduct and disregard for good order and discipline clearly merited your receipt of an OTH. The Board also noted that you are currently incarcerated serving no less than three consecutive life terms following your 2012 conviction for three (3) counts of willful, deliberate, and premeditated attempted murder. The Board unanimously concluded that despite your contentions this is not a case warranting any clemency, and the Board did not find any evidence of an error or injustice in this application that warrants upgrading your OTH. 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. 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, 7/14/2021 Executive Director