DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 1994-18 Ref: Signature Date 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 that 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 8 August 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, available portions of your naval record, applicable statutes, regulations, and policies, an advisory opinion (AO) from a qualified mental health provider dated 13 July 2018, your rebuttal statements, and an AO from Headquarters, Marine Corps(HQMC) dated 12 July 2019. Regarding your request for a personal appearance, the Board determined a personal appearance with or without counsel would not materially add to its understanding of the issues involved. Therefore, the Board determined a personal appearance was not necessary and considered your case based on the evidence of record. You reenlisted in the Marine Corps on 13 March 1987, after serving honorably from 6 January 1984 to 12 March 1987. On 29 October 1991, you received nonjudicial punishment for an eight-day unauthorized absence. You deployed with Battalion, Marine Regiment in support of Operation Desert Storm. In February 1992, when you returned to to be discharged at the expiration of your active obligated service, you were incarcerated by civilian authorities on charges of murder and voluntary manslaughter prior to reporting to your separation command. Based on the state court conviction records in your service record, after consultation Separations Company at Marine Corps Base, on 5 February 1992, through administrative oversight, you were not processed for separation from the naval service until 24 March 1994. On 24 March 1994, you were notified of pending administrative action to separate you by reason of misconduct due to commission of a serious offense (the aforementioned 4 September 1992 state to which you voluntarily pleaded guilty). After you consulted with military defense counsel, you waived your administrative procedural rights, to include your rights to be further represented by legal counsel, to submit a written statement on your own behalf, and to request that your case be heard by an administrative discharge board (ADB). Your commanding officer (CO) recommended that you be discharge with an other than honorable (OTH) characterization of service by reason of misconduct due to commission of a serious offense. After review by the Staff Judge Advocate, the discharge authority approved the recommendation and directed an OTH discharge by reason of misconduct due to commission of a serious offense. On 4 May 1994, you were so discharged. Your discharge paperwork indicates you were “not available for signature” due to your then ongoing Your request for an upgrade to your characterization of service was reviewed in consideration of your post-traumatic stress disorder (PTSD) diagnosis. Your request was fully and carefully considered by the Board in light of the Secretary of Defense’s 3 September 2014 memorandum, “Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requested by Veterans Claiming Post Traumatic Stress Disorder,” of the 25 August 2017 memorandum, “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,” and the 25 July 2018 memorandum, “Guidance to Military Discharge Review boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations.” As part of the Board’s review, a Navy mental health provider reviewed your request and provided the Board with a 13 July 2018 AO. The AO confirmed your PTSD diagnosis but could not affirm that your misconduct was attributable to the diagnosis. The AO stated that “manslaughter does not fall into the ‘normal’ or acceptable behaviors” of PTSD. The AO was provided to you and you submitted rebuttal information which was presented to the Board for consideration. The Board carefully reviewed your application, weighed all potentially mitigating factors, and considered your contention that you were unjustly discharged with an OTH characterization of service. Specifically, you contend that if you had gone straight to the separation command upon arrival in , you would have received an honorable discharge since you were only days away from the end of your enlistment contract, and had served honorably. You further contend 2 that since you obeyed your CO and immediately went to answer the sheriff’s questions, you were detained and did not receive your honorable discharge. The Board also considered your contention that you pleaded guilty to the civilian charges because you felt hopeless. You contended that you had been without any contact from the Marine been informed you were so you listened to the advice of other prisoners and finally accepted one of the plea deals despite your purported innocence. You also contend that you were not confident in the judicial system after being assigned a public defender who did not seem to want to help you, that you felt alone without any support, and that you wanted to avoid a lengthy confinement. The Board substantially agreed with the mental health AO’s determination that does not fall into the ‘normal’ or acceptable behaviors” of PTSD. Noting the length of time between your return to , your administrative separation notification, and your discharge date, the Board reviewed the AO provided by HQMC and considered its recommendation that you have not demonstrated the existence of probable material error or injustice warranting an upgrade. Although you were due to be discharged at the end of your enlistment, and contend that your service up to that point was otherwise honorable, the which you and were convicted was committed during that same enlistment. The HQMC AO also noted that the OTH discharge you received “was more favorable than a bad conduct or dishonorable characterization of service, which [you] most likely would have provided “no evidence of that claim, and such a claim cannot be properly relitigated in this forum.” Nor did you ever make a contemporaneous claim during your administrative separation processing, instead choosing to waive your rights to be heard before an ADB. The HQMC AO also stated that, in the event you are ever successful with your claim of innocence “in the appropriate appellate court,” you may submit a new application for relief but that until then, upgrading your OTH for your offense “would be grossly unjust to the integrity and value of military service characterizations.” Lastly, the Board considered the numerous advocacy letters submitted on your behalf which detailed your post-service involvement and accomplishments. The Board, however, substantially concurred with the mental health and HQMC AOs and determined that, under the totality of the circumstances, there was insufficient evidence of probable material error or injustice in your discharge. Even considering your respectable post-service record, the Board determined that you were appropriately administratively processed for misconduct due to commission of a serious offense. 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 the 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,