DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 1227-18 Dear : This is in reference to your application for correction of your naval record pursuant to the provisions of Title 10 of the United States Code, Section 1552. After careful and conscientious consideration of the entire record, the Board found the evidence submitted was insufficient to establish the existence of probable material enor 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 BCNR , sitting in executive session, considered your application on 26 November 2018. 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 applicab le 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. In addition, the Board considered the advisory opinion (AO) furnished by a qualified Navy Mental Health professional dated 11 July 2018, which was previously provided to you. You enlisted in the Marine Corps and began a period of active duty on 30 August 1974. On 5 December 1975, you received nonjudicial punishment (NJP) for two one-day periods of unauthorized absence (UA). On 30 March 1976 , you submitted a written request for an undesirable discharge for the good of service in .order to avoid trial by comi-martial for three periods of UA, two instances of disrespect to a noncommissioned officer and one to a commissioned officer, and disobedience. Prior to submitting this request for discharge, you conferred with a qualified military la wyer, were advised of your rights, and warned of the probable adverse consequences of accepting such a discharge. On 9 April 1976, your command' s staff judge advocate (SJA) reviewed yo ur request and found it to be sufficient in law and fact recommended that your request be denied and that the charges against you be referred to a court-martial. Accordingly , on 13 April 1976, your request was denied by the separation authority, and, on 4 June 1976 , you were convicted by a special court-martial (SPCM) of seven days of UA, failing to be at your appointed place of duty, disrespect, and disobeying a lawful order. On 4 August 1976 and 14 March 1977, you received NIP for two one-day periods of UA. On 11 August 1977, you began a period of UA that lasted 259 days, ending on 27 April 1978. On 8 June 1978, you submitted a written request for an undesirable discharge for the good of service in order to avoid trial by court-martial. Prior to submitting this request for discharge, you conferred with a qualified military lawyer, were advised of your rights, and warned of the probable adverse consequences of accepting such a discharge. On 9 June 1978, an SJA reviewed your request and found it to be sufficient in law and fact. Subsequently, your request for discharge was granted, and, on 23 June 1978, you received an other than honorable discharge in lieu of trial by court-martial. As a result of this action, you were spared the stigma of a court­ martial conviction and the potential penalties of a punitive discharge and confinement at hard labor. You request an upgrade of your characterization of service on the basis that you suffered from a mental health condition during your military service due to an undiagnosed traumatic brain injury (TBI) resulting from an in -service automobile accident. Your request 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 Board and Boards for C01Tection 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 qualified Mental Health Professional reviewed your request for correction to your record and provided the Board with an AO regarding your assertion you suffered from a mental health condition during your service. The AO noted, in part, that a thorough review of your service record revealed only one medical entry that states you were severely injured in an auto accident, and that it is evident that you were in what seemed to be a serious automobile accident that resulted in lengthy hospitalization. The AO noted, however, that there are no medical records documenting your inpatient treatment , prognosis, dia gnosis , or outcome, and that, therefore, it is impossible to verify that you suffered from TBI resulting in a mental health condition. Moreover, the AO noted that your misconduct began to manifest prior to your automobile accident, as evidenced by your SPCM conviction. Without additional medical/clinical documentation directly referencing your accident and subsequent diagnosis and treatment, there is insufficient evidence to support your contention that you suffered from a mental health condition that contributed to your misconduct. The Board carefully weighed all potentially mitigating factors, such as your record of service, your desire to upgrade your discharge , and your contentions that you went UA and, as a result , were urged to sign for your discharge a few weeks before your tour ended, told not to return to base, and ordered to follow-up for medical health care. The Board also considered your assertions that you were in an automobile accident, were in a coma, had a head injury , as well as lung and heart issues, and that you believe you were not in your right mind when you agreed to be discharged. The Board, however, concluded these factors and assertions were not sufficient to warrant recharacterization of your discharge given your misconduct , which resulted in three NJPs, a SPCM conviction, the preferral of more charges against you, and your second request for a good-of-the-service discharge. The Board believed that considerable clemency was extended to you when your request for discharge was approved. 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 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 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