DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 7192-17 MAR 20 2018 Dear : This is in reference to your application for correction of your naval record pursuant to the provisions oftitle 10 ofthe United States Code, section 1552. Although your application was not filed in a timely manner, the Board found it in the interest of justice to waive the statute oflimitations and consider your application on its merits. A threemember panel ofthe Board for Correction ofNaval Records, sitting in executive session, considered your application on 22 February 2017. The names and votes ofthe members ofthe panel will be furnished upon request. Your allegations oferror and injustice were reviewed in accordance .with administrative regulations and procedures applicable to the proceedings ofthis Board. Documentary material considered by the Board consisted ofyour application, together · with all material submitted in support thereof, relevant portions ofyour naval record, applicable statutes, regulations and policies, the Advisory Opinion (AO) from a Medical Corps officers in the Department ofthe Navy, dated 29 November 2017, and your two rebuttals to the AO, dated 15 and 21 December 2017. In your request for correction to your record, you state that shortly before enlisting, you and your best friend were involved in a road race with two other youths that resulted in two deaths. You indicate that the incident was emotionally devastating, and as a consequence, you and your best friend enlisted in the Marine Corps. You began a period of active duty in the Marine Corps on 21 July 1982. Your petition states that in 1984, your best friend committed suicide. Your petition implies that his death impacted your in-service conduct. On 7 November 1984, you received nonjudicial punishment (NJP) for leaving your post without authorization and wrongfully wearing camouflage utilities off base. Your petition states that you attempted to commit suicide on 3 May 1985 by rolling a military vehicle. On 16 May 1985, you received a second NJP for reckless operation ofa vehicle and causing damage amounting to $2884.34. On 26 July 1985, you were found guilty at summary court martial proceedings ofbreaking restriction. The Court sentenced you to forfeiture of$300 pay and 30 days confinement. You were discharged from the Marine Corps on 6 September 1985, upon completion ofyour required period ofactive service, and received a general characterization of service and a reentry (RE) code ofRE-4. You request that the Board removal oftwo guilty findings ofbreaking restriction, that your summary court martial conviction be overturned, and that your general characterization of service be upgraded to honorable on the basis ofnumerous errors and injustices,,and contend that you were suffering from a pre-existing mental health condition at the time of your military service and that you were not given appropriate medical treatment. Your petition notes two traumatic incidents, the pre-service road race deaths and your friend's.suicide, as events that may have impacted your mental well-being. , Your request was fully and carefully considered by the Board in light ofthe Secretary of Defense's Memorandum, "Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requested by Veterans Claiming Post Traumatic Stress Disorder" of 3 September 2014 and the "Clarifying Guidance to Military Discharge Review Board and Boards for Correction ofMilitary/Naval Records Considering Requests by Veterans for Modification oftheir Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment" memorandum of25 August 2017. A Medical Corps Officer also reviewed your request for correction to your record and provided the Board with an AO dated 29 November 2017, regarding your assertion of suffering from an untreated mental health condition during your time in the Mafine Corps. The AO noted that you provide medical information indicating that you received treatment for depression and Post Traumatic Stress Disorder (PTSD) between 2008 to 2016, but found that there is no in-service medical documentation that corroborates psychiatric symptoms or alcohol abuse nor is there medical information about treatment you may have received from the time ofdischarge through 2008. You provided two rebuttals to the AO, stating that the lack ofin-service medical information supports your contention that you were wrongfully denied medical care while you were in the Marine Corps. You assert that your decline in performance is reflective of a mental health condition. You also contend that you were unlawful held beyond the date ofyour original expiration ofenlistment and raise issues ofdue process violations. After careful and conscientious consideration ofthe entire record including a review ofthe AO and your rebuttals, the Board found the evidence submitted was insufficient to establish the existence ofprobable material or injustice. The Board noted that you hold a general characterization ofservice, which is not an adverse characterization ofservice. The Board reviewed the procedural aspects ofboth NJPs and found that your record indicates that the NJPs were executed in accordance with the applicable regulatory guidance. You also contend that you were wrongfully taken to summary court martial on 26 July 1985. Your state that your original enlistment contract expired on 21 July 1985, and that the summary court martial was illegally held 5 days after the expiration date. The Board noted that your Certificate of Release or Discharge from Active Duty (DD Form 214) reflects 6 days oftime lost from 19-25 September 1983. Time lost can be added to the end ofthe enlistment contract, thereby adjusting the date of discharge. The Board concluded that your time lost from September 1983 appears to have been added to the original enlistment date. The Board found that adding time lost to the end ofyour contract is neither erroneous nor unjust, and that your summary court martial proceedings were properly held on 26 July 1985. The Board reviewed your claim that you lack the requisite intent to break restriction and therefore the NJPs should be removed from your record. Even in consideration ofthe decline in your performance and your statements about your personal hardships, the Board found that you did not provide sufficient evidence to establish that you did not have the mental capacity to form the intent to commit the crime ofviolating a lawful order by breaking restriction. The Board found that your misconduct as documented by your NJPs and the summary court martial support the general vice. honorable characterization ofservice. Furthermore, the Board concluded that your record does not indicate that your due process rights were violated during the administrative and judicial proceedings. The Board also reviewed section 1074 of title 10, U.S. Code and considered your assertion that you did not receive appropriate medical care for your mental health concerns. The Board found that your in-service medical record does not indicate that you suffered from mental health issues that merited medical care beyond what you received. The Board found that your NJPs, the summary court martial findings, and your characterization of service appear to have been executed in accordance with the applicable regulatory and statutory guidance. Accordingly, your application has been denied. It is regretted that the circumstances ofyour case are such that favorable action cannot be taken at this time. You are entitled to have the Board reconsider its deeision upon the submission of new and material evidence. New evidence is evidence not previously considered by the Board. In this regard, it is important to keep in mind that a presumption ofregularity 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, Executive Director