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.     
 
A three-member panel of the Board, sitting in executive session, considered your application on  4 February 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. 
 
A review of your record shows that you entered active duty in July 2005 with the Marine Corps.  After successfully serving on active duty, service that included three tours in Iraq, you were selected for the Marine Corps Enlisted Commissioning Program.  As part of your training, you completed Officer Candidate School (OCS) on 26 March 2016 before commencing attendance in college.  Your record remained stellar through 16 March 2016, when you were accused of assaulting your wife and placing your children in fear.  This led to your referral to the Family Advocacy Program and a deterioration of your professionalism as you contested the allegations made against you.  In 2018, you were counseled multiple times for professionalism and directed to attend Family Advocacy counselling sessions.  However, records show that you failed to cooperate with Family Advocacy counselors or fully participate in the counselling sessions.  As a result, you continued to receive counselling from your command on the need to participate in the Family Advocacy counselling sessions and were referred to a Performance Review Board (PRB) to determine whether you should continue in the commissioning program.  On 10 July 2018, the PRB determined that you failed to meet aptitude standards and should be disenrolled from the Marine Corps Enlisted Commissioning Program.  Upon your administrative removal from the commissioning program, you were notified of administrative separation processing for commission of a serious offense on 19 February 2019 based on your spouse’s allegation of assault and your failure to obey orders to attend Family Advocacy counselling sessions.  You were diagnosed with an unspecified anxiety disorder on 12 June 2019 before your discharge on 13 July 2019 for commission of a serious offense.  In approving your discharge and a General characterization of service, Commanding based his decision only on your orders violation.  Post-discharge, the Department of Veterans Affairs (VA) granted you a 30% disability rating for Unspecified Anxiety Disorder.  In May 2020, you medical provider diagnosed you with Major Depressive Disorder, Panic Disorder, and Alcohol Use Disorder. 
 
Your application issues were bifurcated for consideration by two separate Board panels.  This Board carefully considered your arguments that your DD Form 214 failed to document your attendance at OCS, that you should have been placed on the disability retirement list, and that you deserve an Honorable characterization of service.  The remaining issues will be considered by a second Board panel and adjudicated via separate correspondence.  As part of your application, you assert that you were erroneously discharged for failing to attend counselling and misdiagnosed with an adjustment disorder.  Unfortunately, the Board disagreed with your rationale for relief. 
 
First, the Board concluded the preponderance of the evidence does not support placing you on the disability retirement list.  In order to qualify for military disability retirement with a finding of unfitness, a service member must be unable to perform the duties of their office, grade, rank or rating as a result of a qualifying disability condition.  Alternatively, a member may be found unfit if their disability represents a decided medical risk to the health or the member or to the welfare or safety of other members; or the member’s disability imposes unreasonable requirements on the military to maintain or protect the member.  In your case, the Board found no evidence that you met any of the criteria for unfitness based on your performance leading up to your discharge from the Marine Corps.  While you were diagnosed with an anxiety disorder prior to your discharge, there was no medical determination that this condition created an occupational impairment significant to prevent you from perform the duties of your office, grade, rank or rating.  Additionally, there was no evidence the condition represented a medical risk that compromised your safety or the safety of others or created an unreasonable requirement on the Marine Corps to maintain you on active duty.  As a result, the Board determined that the evidence did not meet the standard for a finding of unfitness or your placement on the disability retirement list.  In making this determination, the Board considered your post-discharge VA ratings but concluded this evidence was not probative on the issue of unfitness since eligibility for compensation and pension disability ratings by the VA is tied to the establishment of service connection and is manifestation-based without a requirement that unfitness for military duty be demonstrated.  Finally, the Board also concluded you were not eligible for disability processing based on your discharge for misconduct.  Disability regulations dictate that misconduct based processing shall supersede disability processing.  So even if there was evidence of unfitness, the Board determined you were appropriately discharged for misconduct. 
 
Second, the Board concluded you characterization of service remains appropriate.  In reviewing your record and the evidence documenting your failure to participate in the Family Advocacy counseling sessions, the Board determined that the preponderance of the evidence supports a finding that you were ordered to attend the Family Advocacy counselling sessions on multiple occasions through counselling records from your command and failed to obey those orders by either refusing to attend, being disruptive in the sessions you attended, or failing participate in the sessions by not completing assignments.   In the Board’s opinion, regardless of whether you believed that you were guilty of the offense that resulted in your assignment to Family Advocacy Program, you were obligated to participate in the sessions as ordered by your command.  Based on your failure to attend and participate in the counselling sessions, the Board found that you violated the multiple direct orders from your chain of command to do so.  As a result, the Board determined you committed the misconduct that formed the basis for your discharge.  Regarding your characterization of service, the Board concluded that your service was generally honest and faithful but that significant negative aspects of your conduct outweighed the positive aspects of your record.  Specifically, your repeated refusal to obey direct orders from your chain of command was significant misconduct that outweighed your superior performance based on the fact you were a non-commissioned officer with years of experience that was well aware of the negative impact your actions would have on good order and discipline.  The Board determined your actions were a significant detriment to good order and discipline that negatively affected your unit and others outside your unit including individuals participating in the Family Advocacy counselling program.  Based on these factors, the Board found that no change is required to your characterization of service. 
 
Finally, the Board considered whether your DD Form 214 is erroneous based on the failure to list your attendance at OCS.  The Board concluded the applicable regulations do not require the documenting of military school attendance on the DD Form 214.  Since your OCS attendance is otherwise documented in your record, the Board found no injustice with not listing it on your DD Form 214.  Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to your record.   
 
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 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, 
   
2/5/2021
Deputy Director