DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 3870-18/ 12919-11 JUL 24 2019 This is in reference to your reconsideration request received on 2 May 2018. You previously petitioned the Board for Correction of Naval Records (Board) and were advised in our letter of 14 September 2012 that your application had been denied. Your request for reconsideration was reviewed in accordance with Board for Correction of Naval Records procedures that conform to Lipsman v. Sec'y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004). After careful and conscientious reconsideration 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. Because your application was submitted with a new statement and evidence that was not previously considered, the Board reconsidered your request. Your request was carefully examined by a three-member panel of the Board, sitting in executive session, on 9 May 2019. The names and votes of the members of the panel will be furnished upon request. Documentary material considered by the Board consisted of your applications, together with all material submitted in support thereof, available portions of your naval record, and applicable statutes, regulations, and policies, as well as the enclosed new advisory opinion (AO) dated 8 November 2018. You enlisted in the Marine Corps and began a period of active duty on 6 November 1970. You served without disciplinary incident until 23 August 1971, when you received nonjudicial punishment (NJP) for a two-day unauthorized absence (UA). Upon your return, you were diagnosed with passive-aggressive personality and situational anxiety. You had three periods of UA, 72 days, 125 days, and three days in length, which it appears were not adjudicated. On 10 July 1972, you received NJP for a 62-day UA. On 11 October 1972, you began a period of UA, which lasted until 11 January 1973, and then began a second UA period on 16 January 1973, which lasted until 19 June 1973. During the latter UA period, you were convicted in civilian court for larceny and were awarded one year in prison, which was suspended for two years of probation. On 23 June 1973, you began another UA, during which you missed a probation hearing, which resulted in your civilian confinement on 4 June 1974. Subsequently, you were notified of pending administrative separation action by reason of misconduct due to frequent involvement with military and civilian authorities. After you waived your rights, your commanding officer recommended that you be discharged with an other than honorable (0TH) characterization of service by reason of misconduct due to civilian conviction. The discharge authority approved this recommendation and directed that you be discharged with an 0TH characterization of service by reason of misconduct. On 12 November 1974, you were discharged. Your request for an upgrade to your service characterization was reviewed in consideration of your contention that you suffered from post-traumatic stress disorder (PTSD) due to the racially tense and violent environment you were stationed in. 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 Medical Service Corps officer reviewed your request and provided the Board with an AO dated 8 November 2018. The AO noted that you did not provide any post-service documentation of a PTSD diagnosis, and that there is insufficient evidence that your post-service diagnosed depressive disorder could be attributed to military service. Additionally, the AO notes that, while PTSD could explain your numerous extensive periods of UA, it would not account for your civilian larceny conviction. The AO thus concluded there is insufficient evidence to conclude, at this time, that your post-service PTSD diagnosis can be attributed to military service or that your misconduct can be attributed to PTSD. The AO was provided to you on 8 November 2018, and you were given 30 days in whlch 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 your frequent UAs were caused by your developing PTSD. The Board specifically considered your contention that your PTSD was caused by the chaotic environment in which you served, an environment full of racial tension and violence, threatened and actualized violence, and threats made by African-American and Puerto Rican gangs. Further, the Board considered your contention that one of your UA periods began after your life was threatened when you refused to fix another Marine's rack. You specifically contend the Marine pulled out a switchblade knife and he and his "henchmen" threatened you and stated "you're a dead man." You explain that this assault occurred on the heels of a racially motivated murder of a Marine and days full of "racially-inspired beatings, muggings, robberies, vandalism, and insubordination." The Board also considered the documentation you submitted in support of your contentions. The Board, however, substantially concurred with the AO and determined that there is insufficient evidence to support a finding of service-related PTSD that contributed to and mitigated your misconduct. Even under the liberal consideration standard, the Board concluded that these factors and contentions were not sufficient to warrant relief in your case given the seriousness of your civilian larceny conviction and repetitive nature of your numerous UA periods which totaled over 700 days. The Board did not find a probable material error or injustice that warrants upgrading your discharge. It is regretted that the circumstances of your current reconsideration petition 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. New matters are those not previously considered by the Board. In the absence of new matters for reconsideration, the decision of the Board is final, and your only recourse would be to seek relief, at no cost to the Board, from a court of appropriate jurisdiction. 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