Docket No. 2957-18 

This is in reference to your application for correction of your naval record pursuant to the provisions of 10 USC 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 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 case on its merits.  A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 6 December 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 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 and applicable statutes, regulations and policies.  In addition, the Board considered the advisory opinion contained in BCNR letter MLCS Docket No: 2957-18 of 26 October 2018; a copy of which was previously provided to you for comment. 

A review of your record shows that you entered active duty with the Marine Corps in June 1990.  On 26 October 1990, non-judicial punishment was imposed on you after an underage alcohol incident where you broke your squad leader’s leg while drunk and disorderly.  Non-judicial punishment was again imposed on you in December 1990 for sleeping on post.  You subsequently participated in Operation Desert Storm from February 1991 through April 1991.  Upon your return, non-judicial punishment was imposed on you for a short-term unauthorized absence before you were convicted by a special court-martial in May 1992 for larceny from the Marine Corps Exchange.  The conviction resulted in a bad conduct discharge that was suspended for 12 months.  However, you were again convicted at a special court-martial on 15 September 1992 for multiple incidents of misconduct including resisting apprehension, false official statement, and assaulting commissioned and non-commissioned officers.  This conviction resulted in a bad conduct discharge that was effected on 30 June 1993 at the completion of your appellate review.  Post-discharge, you were diagnosed with schizophrenia in 1994 and Post­Traumatic Stress Disorder (PTSD) in 2011.  Your post-service history contains multiple instances of confinement and hospitalizations due to your mental health conditions. 

The Board carefully considered your arguments that you deserve an upgrade to your characterization of service to General, a change to your narrative reason for separation to disability, and a change to your DD Form 214 to list foreign service. You assert that your punitive discharge remains inequitable in light of your mental health conditions and that you were suffering from schizophrenia and schizoaffective disorder when you were on active duty.  Unfortunately, the Board disagreed with your rationale for relief. In making their findings, the Board substantially concurred with the advisory opinion contained in BCNR letter MLCS Docket No: 2957-18 of 26 October 2018. First, the Board concluded you were criminally responsible for your misconduct that formed the basis for your punitive discharge from the Marine Corps.  Despite your post-discharge diagnosis for schizophrenia, the Board found no evidence you were not criminally responsible for the various acts of misconduct you committed while on active duty.  Based on this finding, the Board concluded you were not eligible for disability processing since disability regulations direct misconduct processing to supersede disability processing.  Based on your special court-martial conviction on 15 September 1992 and your bad conduct discharge, the Board determined you were properly discharged for misconduct. Absent evidence that you were not criminally responsible for your misconduct based on your mental health condition, the Board felt it inappropriate to change your narrative reason for separation.  Second, the Board concluded that insufficient mitigation evidence exists to change your characterization of service.  Despite applying liberal consideration in your case based on your diagnosed mental health conditions, the Board reached the conclusion that your characterization of service should remain unchanged.  They examined your history of misconduct during your brief period of service in Marine Corps and felt the number of offenses you committed along with the seriousness of the offenses outweighed the mitigation offered by your mental health conditions.  Specifically, the Board noted that you were awarded two bad conduct discharges within four months due to the seriousness of your offenses.  In addition, the Board agreed with the advisory opinion that some of the offenses which you committed did not have a reasonable nexus to your mental health condition.  These factors led the Board to determine that your diagnosed mental health conditions provided insufficient mitigation of your misconduct to merit a change to your characterization of service.  Accordingly, the Board concluded that insufficient evidence of error or injustice exists to warrant a change to your record. 

Regarding your request to add foreign service to your DD Form 214, Board regulations require that you exhaust your administrative remedies prior to seeking Board relief.  Since the change you request is administrative in nature with no evidence the Marine Corps refused to correct the alleged error, the Board felt the issue was not yet ripe for Board consideration.  You may request the change to your DD Form 214 to Headquarters, United States Marine Corps, 3280 Russell Road, Quantico, VA 22134-5103.  If you are unsatisfied with the response from the Marine Corps after you request a change to your DD Form 214, you may submit another application with evidence supporting the existence of an error or injustice in your record. 

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 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,