Docket NO. 695-21
Ref: Signature Date 
 
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 27 August 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 an advisory opinion (AO) furnished by qualified mental health provider, which was previously provided to you.  Although you were afforded an opportunity to submit a rebuttal, you did not do so.    
 
You enlisted in the Marine Corps on 29 January 2001.  Your pre-enlistment physical on 28 December 2000 and self-reported medical history noted no psychiatric or neurologic conditions or symptoms.  
 
On 18 October 2001 you underwent an evaluation at the Mental Health Clinic, Naval Hospital, .  You were diagnosed with an adjustment disorder with depressed mood, anti-social personality disorder, partner-relationship problem, and occupational problem.  The Medical Officer (MO) determined that your personality disorder was of such severity as to interfere with your ability to function effectively in the military environment.  The MO recommended your expeditious administrative separation for unsuitability given that you presented a high and ongoing risk for harm to self or others and to negatively impact unit morale.   
 
According to your service record, your command initiated an administrative separation and it was apparently almost finalized.  However, sometime around Christmas 2001 following a return from a 96-hour liberty pass, you tested positive for a high concentration of cocaine on a urinalysis screening.  Following the positive urinalysis, your administrative separation processing was cancelled and your command initiated court-martial proceedings.   
 
On 15 March 2002 pursuant to your guilty plea, you were convicted at a Special Court-Martial (SPCM) of the wrongful use of a controlled substance (cocaine) and communicating a threat.  You received as punishment seventy-five days of confinement, forfeitures of pay, and a reduction in rank to the lowest enlisted paygrade (E-1).  On 5 June 2002 the Convening Authority approved the SPCM sentence as adjudged. 
 
On 6 November 2002 pursuant to your guilty plea, you were convicted at a General Court-Martial (GCM) of the wrongful distribution of a controlled substance (methylenedioxy-methamphetamine).  You received as punishment confinement for nine months, total forfeitures of pay, and a discharge from the Marine Corps with a Bad Conduct Discharge (BCD).  On 22 March 2004 the Navy-Marine Corps Court of Criminal Appeals affirmed the GCM findings and sentence.  Upon the completion of appellate review in your case, on 16 August 2004 you were discharged from the Marine Corps with a BCD and assigned an RE-4B reentry code.   
 
On 3 April 2013 the Naval Discharge Review Board (NDRB) denied you relief.  The NDRB determined that your discharge was proper as issued and that no change or clemency was warranted.   
 
As part of the review process, the BCNR 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 6 July 2021.  The MD initially observed that you received outpatient and inpatient psychiatric treatment for diagnoses of adjustment disorder with depressed mood, anti-social personality disorder, partner-relationship problem, and occupational problem, and that you were recommended for expeditious administrative separation for unsuitability.  The MD noted that you provided post-discharge outpatient and inpatient mental health clinical records from 2010-2020 documenting recurrent episodes of psychiatric treatment for multiple mental health issues.  However, the MD noted that your clinical records focused on your more recent mental health conditions beginning several years after your Marine Corps discharge.  The MD determined that although post-service you were diagnosed with mental health conditions, there was no information presented to link your post-service diagnoses to your active duty misconduct.  The MD concluded by opining that the preponderance of objective evidence failed to establish you suffered from an unfitting mental health condition on active duty, or that your in-service misconduct could be mitigated by 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 your contentions that:  (a) you found it unfair and unnecessarily harsh that you received a BCD; (b) you did not bring any disorders upon yourself and as a child you could not have prevented their onset; (c) due to your diagnoses your actions were due to being unable to adjust to a military lifestyle; (d) your minimal coping skills were all that you had to fall back on, and at the time you did not know how much your diagnoses affected yourself and others around you; (e) you have had ongoing struggles with mental health issues post-discharge and you have done all that you can to better your life situation; (f) your current discharge does not allow you to be eligible for suitable employment and it is important to move forward with your discharge request for yourself and your children to support them financially; and (g) you request a discharge upgrade with liberal consideration based on the severity of your mental health diagnoses and the non-urgent rate in which you were discharged.  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, even under the liberal consideration standard, the Board concluded that there was no nexus between any unfitting 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 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.  Moreover, even if the Board assumed that your SPCM and GCM 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 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 determined the record clearly reflected that your misconduct was intentional and demonstrated you were unfit for further service.   
 
The Board concluded that any contention about the non-urgent rate you were discharged was without merit.  Following the MO’s recommendation that you be expeditiously administratively separated, your command initiated administrative separation proceedings.  However, your command cancelled your administrative processing after you tested positive for cocaine and instead pursued a court-martial for your drug abuse.  The Board determined that your command acted in a timely manner and did not unreasonably delay your administrative separation.  The Board concluded that you have no one to blame for ultimately being separated with a BCD but yourself.    
 
Furthermore, 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 declined to 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 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. 
 
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.  You were properly convicted at a SPCM and GCM of serious drug-related misconduct, and 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,

 
9/13/2021
Executive Director