Docket No: 8710-20            

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 the entire record, 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 you did not file your application in a timely manner, the statute of limitation was waived in accordance with the 25 August 2017 guidance from the Under Secretary of Defense for Personnel and Readiness regarding requests by Veterans for modification of their discharge due to mental health conditions, sexual assault, or sexual harassment (Kurta Memo).  A three-member panel of the Board, sitting in executive session, considered your application on 12 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, including 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 reviewed a 7 May 2021 advisory opinion (AO) from a mental health professional, a copy of which you were provided and to which you did not provide a response.  
 
On 14 March 1986, you enlisted in the Marine Corps and commenced a period of active duty.  On 13 July 1987, you received nonjudicial punishment for unauthorized absence.  On 14 November 1987, you received nonjudicial punishment for unauthorized absence and willfully disobeying an order.  On 15 December 1988, you were convicted by a special court-martial for unauthorized absence and larceny.  As part of your punishment, you received a bad conduct discharge.  On 12 May 1989, you were discharged with a bad conduct discharge.  In 2015, you filed a petition with this Board, in which you contended you were young while in the Marine Corps and made some mistakes.  This Board denied your petition. 
 
The Board carefully considered all potentially mitigating factors in your petition to determine whether the interests of justice warrant relief in your case including in accordance with the Wilkie Memo.  You contend in your petition that you developed a mental health condition during your military service, which might have mitigated the misconduct that led to your bad conduct discharge.  You further contend in your petition that “I believe the record to be correct at time of judgement but should be upgraded because I served my country and put my life on the line and should receive my status as a veteran.” 
 
In light of your assertion of a mental health condition, the Board received, and reviewed, the 7 May 2021 AO.  The AO reviewed your naval records as well as all of the materials that you submitted, and explained that your “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.”  The AO concluded that, “it is my considered medical opinion the preponderance of available objective evidence failed to establish Petitioner suffered from a mental health condition at the time of his military service, or his in-service misconduct could be mitigated by a mental health condition.”   
 
In review of all of your materials, the Board did not find an injustice in your record warranting relief.  The Board concurred with the finding of the AO and it did not find a nexus between your asserted mental health condition such that it would mitigate the misconduct you engaged in while on active duty.  In conclusion, given the totality of the circumstances, which included the imposition of two nonjudicial punishments and a conviction by a special court-martial, as well as a review of your overall service record, the Board determined that your request does not merit relief. 
 
You are entitled to have the Board reconsider its decision upon the 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