DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490 

Docket No: 2951-18 
AUG 19, 2019 

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 three­member panel of the Board, sitting in executive session, considered your application on 20 June 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, relevant portions of your naval record, and applicable statutes, regulations, and policies, as well as the enclosed 20 July 2018 advisory opinion (AO) from a qualified Navy mental health professional. 

You enlisted in the Marine Corps and began a period of active duty on 6 February 1976. You were counseled in September 1977 concerning your "lack of bearing, general apathy, and lack of desire to improve yourself." On 5 October 1977, you received nonjudicial punishment (NJP) for being absent from your appointed place of duty. On 9 January 1978, you failed to report to your new command in compliance with orders and remained in an unauthorized absence (UA) status until 7 June 1978. You began a second period ofUA on 9June 1978, which lasted until 18 June 1980. Your record is incomplete in that it does not contain all of the documents pertaining to your administrative discharge. However, based on your Certificate of Release or Discharge from Active Duty (DD Form 214}, it appears you submitted a written request for discharge for the good of the service (GOS) to avoid trial by court-martial. Prior to submitting this request, you would have been required to confer with qualified military counsel, at which time you would have been advised of your rights and warned of the probable adverse consequences of accepting such a discharge. Your request was granted and your commanding officer was directed to discharge you with an other than honorable (0TH) characterization of service for the good of the service. As a result, you were spared the stigma of a court-martial conviction, as well as the potential penalties of a punitive discharge. You were discharged on 22 September 1980. 

Your request for an upgrade to your characterization of service was reviewed in consideration of your contention that you suffered from "mental health problems." 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 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.
 
As part of the Board's review, a qualified Navy mental health provider reviewed your request and provided the Board an AO on 20 July 2018. The AO concluded that there was insufficient evidence to support your contention that a mental health condition was present at the time of your service or that any such condition would have been a mitigating factor in your misconduct. The AO noted that you "give a good description of a head injury that would have predisposed [you] to a Traumatic Brain Injury (TBI), and [your] medical record substantiates treatment for a concussion after that event." However, the AO determined that your behaviors and misconduct "do not seem in line with that of a TBI, so a connection cannot be made between that potential diagnosis and his misconduct." Additionally, the AO noted that there was no evidence of a TBI in the post-service medical documentation provided and no discussion ofpost-traumatic stress disorder. The AO also noted that you had been diagnosed, post-service, with bipolar disorder with psychotic features and other noted diagnoses such as schizophrenia and major depressive disorder. Further, the AO noted "there does seem to be some discussion of possible psychotic symptoms during this time in service, such as disorganized behavior and hallucinations, but there are no medical notes from the period or post-service narrative mental health notes tethering those symptoms or behaviors to his time in service." The AO was provided to you on 7 September 2018, and you were given 30 days in which to submit a response. When you did not provide a response, your case was submitted to the Board for consideration. 

The Board carefully reviewed your application, weighed all potentially mitigating factors, and considered your contention that you "served two years of active duty until [your] mental status wouldn't let [you] anymore" and that your "hard hit to the head" affected your mental health. The Board also considered your contention that your 0TH characterization of service is now inequitable. Specifically, the Board considered your contention that "the events that took place are no longer relevant" in your life, you have "lived in as responsible a manner'' as you could, and ''there is no valid equitable purpose in leaving the 0TH discharge in place." You contend that, because you are now remarried and stable, 0TH is "no longer a proper characterization." Additionally, the Board considered your contention that the underlying basis of your separation was procedurally defective but noted your reliance on the Navy's Military Personnel Manual (MPN), which was not applicable to you, a Marine. In the absence of the complete documentation for your GOS request, the Board presumed regularity and concluded that there was insufficient evidence to support your contention that your discharge was procedurally defective. Lastly, the Board considered your contention that the adverse action, to include the administrative discharge, was unfair. Specifically, you contend there was "insufficient proof' that you "willfully deserted and hid" from the Marine Corps because you "did not act with criminal intent." You further contend that "no formal charges were brought against you in a fashion that would have allowed you to adequately build a defense." Lastly, you contend it was unjust because a medical evaluation, mental healthcare, and rehabilitation should have been allowed. The Board, however, concurring with the AO, found there was insufficient evidence to attribute your misconduct to a TBI or mental health condition. Even under the liberal consideration standard, the Board found your extended UA periods warranted an 0TH characterization of service. The Board discerned no procedural defect, impropriety, or inequity in your discharge. The Board noted that, in requesting a discharge for the good of the service in lieu of trial by court-martial, you would have been required to meet with a military defense counsel and to admit that you were guilty of the misconduct alleged. Finally, the Board noted you received a benefit from being allowed to separate with an 0TH characterization of service instead of risking greater punishment at a court-martial. The Board thus concluded that there is no probable material error or injustice in your record warranting corrective action. 

It is regretted that the circumstances of your case are such that favorable action cannot be taken at this time. 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.