Docket No: 941-20 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 9 April 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, an Advisory Opinion (AO) from a qualified mental health provider, 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). You enlisted in the Marine Corps on 20 November 1975 at age 18. On 2 April 1976 you were dropped from your BFSC School at due to disciplinary reasons. On 13 April 1976 you received non-judicial punishment (NJP) for unauthorized absence (UA) lasting nine days. On 6 May 1976 you received NJP for larceny of a wristwatch and UA lasting 10 days. On 3 January 1977 you commenced a period of UA that terminated after 95 days on 8 April 1977 with your surrender to civilian authorities. On 25 April 1977 you commenced a period of UA that terminated after two days on 27 April 1977 with your surrender to military authority. On 30 April 1977 you commenced a period of UA when you broke restriction that terminated after 38 days on 7 June 1977 with your surrender to military authority. On 6 July 1977 you were convicted at a Special Court-Martial (SPCM) for your 2 UA periods that lasted 95 and 38 days, respectively. You received as punishment two months of confinement, a reduction in rank to the lowest enlisted paygrade (E-1), forfeitures of pay, and a discharge from the Marine Corps with a Bad Conduct Discharge (BCD). However, the Convening Authority suspended your BCD for twelve months and retained you on active duty. However, on 27 January 1978 you received NJP for UA and three separate specifications of disobedience of a lawful order. On 2 February 1978 you commenced a period of UA that terminated after 31 days on 5 March 1978 with your surrender to military authority. Your command referred multiple charges to a SPCM to include UA, disobeying a superior commissioned officer, and insubordinate conduct toward superior commissioned officer. On 14 March 1978 you submitted a voluntary written request for discharge under other than honorable conditions for the good of the service to escape trial by court-martial. Prior to submitting this voluntary discharge request you conferred with a qualified military lawyer, at which time you were advised of your rights and warned of the probable adverse consequences of accepting such a discharge. However, on 23 March 1978 the Separation Authority disapproved your voluntary discharge request and instead opted to vacate your suspended BCD due to your continued misconduct. Ultimately, on 24 April 1978 you were discharged from the Marine Corps with a BCD and assigned an RE-4 reentry code. As part of the review process, the Board’s Physician Advisor, who is also a medical doctor (MD) and a Fellow of the American Psychiatric Association, reviewed your contentions and the available records, and issued an AO dated 17 February 2021. The MD initially observed that although you were diagnosed with an immature character disorder, your in-service records did not reveal any evidence of a mental health diagnosis, behavioral changes indicating any mental health conditions, or evidence you experienced any primary or secondary trauma. The MD noted that you also did not provide any medical or clinical documentation for review indicating any mental health conditions. The MD concluded by opining that there was insufficient evidence you were either diagnosed with or suffered from a mental health condition on active duty, or that your misconduct was attributable to 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 Hagel, Kurta, and Wilkie Memos. These included, but were not limited to: (a) you were told at the time of discharge it would become a general (under honorable conditions) characterization in six months, (b) you enlisted at a young age, were taught to kill, and it was impossible to readjust to being a civilian, (c) your intense military training is still a mental disturbance 40 years later, (d) you suffer from PTSD, (e) your BCD was too excessive, (f) you still suffer from mental health issues and even though you can’t provide certain medical evidence, that doesn’t mean you didn’t have problems adjusting to the civilian world, (g) you were never diagnosed with a major mental health condition in the Marine Corps because you never saw a mental health specialist on active duty, and (h) you have been in prison seven times and served over 25 years day for day and if that is not a person with a problem you don’t know what is. 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 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 the Board on 18 February 2020 to specifically provide additional documentary material. The Board also noted 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 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. Additionally, absent a material error or injustice, the Board generally will not summarily upgrade a discharge solely for the purpose of facilitating benefits from the Department of Veterans Affairs, 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 for mental health conditions, the Board concluded that your serious misconduct and disregard for good order and discipline clearly merited your receipt of a BCD. Additionally, the Board observed that character of military service is based, in part, on conduct and overall trait averages which are computed from marks assigned during periodic evaluations. Your overall active duty trait average in conduct was 2.51. Marine Corps regulations in place at the time of your discharge required a minimum trait average of 4.0 in conduct (proper military behavior), for a fully honorable characterization of service. The Board concluded that your conduct marks during your active duty career were a direct result of your serious misconduct which further justified your BCD. The Board also noted that, although it cannot set aside a conviction, it might grant clemency in the form of changing a characterization of discharge, even one awarded by a court-martial. However, the Board concluded that despite your contentions this is not a case warranting any clemency. The simple fact remains is that you left the Marine Corps multiple times while you were still contractually obligated to serve and you went into a UA status each time without any legal justification or excuse. You were properly convicted at a SPCM of serious misconduct, and you committed further misconduct after your SPCM. Thus, the Board did not find any evidence of an error or injustice in this application that warrants upgrading your BCD. 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,