Docket No: 9523-17

Dear 

This letter 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 your application was not filed in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your application on its merits.  A three-member panel of the Board, sitting in executive session, considered your application on 19 February 2019.  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, the enclosed previously provided 2 April 2017 Advisory Opinion (AO), and applicable statutes, regulations, and policies. 

You enlisted in the Marine Corps on 25 November 1975.  During the period from 25 January to 18 March 1977, you received three non-judicial punishments (NJP) for misconduct including three specifications of disobeying a lawful order, using foul language in the performance of duty, damage to government property, using disrespectful language toward an NCO, and assault.  On 9 June 1977, you were convicted at a summary court-martial of unauthorized absence (UA), and again using disrespectful language toward an NCO.  On 21 June 1977, you again absented yourself from your unit without authorization, until 31 October 1977, when you surrendered.  On 21 November 1977, you submitted a written request for discharge for the good of the service to avoid trial by court-martial for 131 days of UA.  Prior to submitting this 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.  Your request was granted and your commanding officer (CO) was directed to issue an other than honorable (OTH) discharge for the good of the service.  As a result of this action, you were spared the stigma of a second court-martial conviction, as well as the potential penalties of a punitive discharge.  On 8 December 1977, you were discharged.  

Your contention that you suffered from post-traumatic stress disorder (PTSD) was fully and carefully considered by the Board in light of the 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 Boards and Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modification of their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment,” memorandum of 25 August 2017. 
 
A Navy mental health professional also reviewed your request and provided the Board with an AO regarding your assertion that you were suffering from PTSD.  The AO stated, in part, that you claimed that you had PTSD prior to your enlistment and that, if the Marine Corps had diagnosed you with PTSD, you would have been ineligible for enlistment, thereby preventing your OTH characterization of service.  As evidence, you provided a statement that you had undiagnosed PTSD prior to your enlistment due to “the murder of both [your] parents,” as well as due to “an attempt upon [your] own life” when you were a child.  The AO noted that there is no indication that you ever mentioned these purported events during your enlistment process.  The AO specifically noted that, at the time of your enlistment, you identified names and residences of both your mother and father on your DD form 1966, indicating that they were alive – not deceased.  You also submitted a one-page form from the University of the State of, State Education Department which stated “No formal psychiatric history.  However [sic] has been through extremely traumatic life events and could benefit from program.”  There is no name or address for the psychiatrist or psychologist, and no signature or date of the diagnostician who made the diagnosis.  On 26 December 2017, you were notified by electronic mail of this discrepancy and requested to provide “a signed diagnosis or additional medical or clinical evidence . . . in support of your claim.”  You did not respond.  On 4 April 2018, you were provided with a copy of the AO, which, as stated above, noted the discrepancies on your University of the State of     form, and again requested that you provide additional medical or clinical evidence in support of your PTSD claim.  Again you did not respond.  As stated in the AO, after a comprehensive review of both your service record and medical record, there is no mention of this or any other traumatic event suffered by you prior to or during your service in the Marine Corps.  Based on the preponderance of evidence, it is the AO’s medical opinion that your misconduct was not due to PTSD or a PTSD-related disorder.
   
The Board carefully weighed all potentially mitigating factors, such as the unsigned letter from the University of the State of ,   State Education Department, your desire to upgrade your character of service, and your contention that your undiagnosed preexisting PTSD was a reason for your misconduct.  The Board also noted that you failed to provide a rebuttal to the AO supporting your claim of PTSD.  The Board found no nexus between your asserted PTSD and your misconduct.  The Board also concurred with the AO’s statement that there was insufficient evidence to support your contention that you had service-connected PTSD which contributed to your misconduct.  Even under the liberal consideration standard, the Board found that the seriousness of your misconduct, as evidenced by three NJPs, a SCM conviction, and your subsequent request for discharge in lieu of trial by court-martial, merited your receipt of an OTH discharge. 

It is regretted that the circumstances of your case are such that favorable action cannot be taken.  You are entitled to have the Board reconsider its decision upon submission of new matters.  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,

Executive Director