Docket No: 8705-20 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 15 September 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). The Board also considered an advisory opinion (AO) from a qualified mental health professional dated 8 May 2021, which was previously provided to you. You were afforded 30 days to submit any further statements or additional documentary material in support of your application. In your letter dated 2 June 2021, in response to the AO, you requested an additional 90 days to submit additional documentary material in support of your application. After the 90 days expired, your case was presented to the Board. 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 enlisted in the Marine Corps and began a period of active duty on 2 September 1975. On 14 November 1977, you were convicted by special court-martial (SPCM) of an unauthorized absence from 27 May 1977 to 3 October 1977, totaling 129 days. As punishment you were awarded confinement, forfeiture of pay and reduction in rank. On 19 December 1977, the record reflect you commenced a period of unauthorized absence, and were subsequently declared a deserter on 18 January 1978. Unfortunately, the documents related to your administrative separation are not in your official military personnel file (OMPF). In this regard, the Board relies on a presumption of regularity to support the official actions of public officers and, in the absence of substantial evidence to the contrary (as is the case at present), will presume that they have properly discharged their official duties. Your Certificate of Release or Discharge from Active Duty (DD Form 214), reveals that you were separated from the Marine Corps on 1 February 1984 with an other than honorable (OTH) characterization of service, your narrative reason for separation is “Misconduct – Absent Without Leave (admin discharge board required but waived),” your separation code is “HKD-1,” and your reenlistment code is “RE-4.” As part of the Board’s review, a qualified mental health professional reviewed your request and provided the Board with an AO on 8 May 2021. The AO noted that in-service records did not contain evidence of a diagnosis of a mental health condition or psychological/behavioral changes, which may have indicated a mental health condition. Throughout your administrative processing there were no concerns noted which would have warranted your referral to mental health resources. The AO concluded by opining that the preponderance of available objective evidence failed to establish you suffered from a mental health condition at the time of your military service or your in-service misconduct could be mitigated by a mental health condition. The Board carefully reviewed your application, weighed all potentially mitigating factors, and considered your contentions that: 1) your discharge was unjust based on the facts that your psychological well-being as it related to your behavior was not taken into consideration; 2) you were young, frighten[ed], and not able to explain, not even to your fiancé (who became your wife) the emotions or mental status you were in at that point in your life; 3) you sustained injuries in an accident in that were treated by the military and injuries that were not treated; 4) you developed different behaviors after the accident such as not wanting to be around others, being moody, and quick to anger; and 5) you have since been diagnosed as having PTSD (Non-Combat) associated with the trauma of being on active duty in one of the most demanding branches of service. After careful consideration of the AO, your submission of supporting documentation, and applying liberal consideration, the Board did not find an error or injustice that warrants upgrading your characterization of service or granting clemency in the form of an upgraded characterization of service. 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. These included, but were not limited to, your contentions as previously discussed and your desire to upgrade your discharge. Based upon this review, the Board concluded these potentially mitigating factors were insufficient to warrant relief. Specifically, the Board determined your misconduct as evidenced by a SPCM conviction, and your unauthorized absence that exceeded more than 30 days declaring you a deserter, outweighed these mitigating factors. Accordingly, given the totality of the circumstances, the Board determined 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, 10/1/2021 Executive Director