DEPARTMENT OF THE NAVY 

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

Docket No: 584-18 
MAR 18 2019 

This is in reference to your application for correction of your naval record pursuant to the provisions of Title 10, 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 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 for Correction of Naval Records, sitting in executive session, considered your application on 13 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 y the Board consisted of your application, together with all material submitted in support ther of, relevant portions of your naval record, applicable statutes, regulations, and policies, and an advisory opinion (AO) of 16 May 2018. 

You served honorably in the Marine Corps from 8 January 1966 to 7 January 1969. You reenlisted on 12 February 1969 and appear to have served without disciplinary incident until 17 August 1967. On that date, you received nonjudicial punishment (NJP) for making a claim against the government that you had not been paid while knowing the claim was false. You participated in numerous operations while deployed to the          from 24 August 1967 to 23 March 1968, when you returned to the United States after being hospitalized with a gunshot wound to your foot. You appear to have served without disciplinary incident until 4 August 1971, when you received NJP for failure to obey a regulation. You received a third NJP on 25 August 1971 for an unauthorized absence (UA) of three days. On 23 September 1971, you received NJP for breaking restriction and two additional UA periods totaling seven days. On 10 February 1972, you were convicted by special court-martial (SPCM) after a 42-day UA period and were sentenced to confinement, forfeiture of pay, and a reduction in rank. On 1 March 1972, you were convicted by summary court-martial of an eight-day UA and were sentenced to confinement. Your record is incomplete, but it appears that you elected your right to an administrative discharge board (ADB) after being notified of pending administrative separation action by reason of frequent involvement with military or civilian authorities. The ADB recommended that you be discharged with a general (under honorable conditions) (GEN) characterization of service, but the Staff Judge Advocate recommended that you be retained. The ADB's recommendation was disapproved, and you were retained on active duty. Within less than a month, however, you received another NJP for a two-day UA and failure to obey a regulation. Your record is incomplete, but it appears that, after four additional UA periods of eight days, ten days, and two extended periods from 27 November 1972 to 7 February 1973 and 12 February 1973 to 22 June 1973, you requested separation for the good of the service. Accordingly, on 9 August 1973, you were discharged with an other than honorable (0TH) characterization of service.

Your request for an upgrade to your characterization of service was reviewed in consideration of your contention that you were "not in a good mind" upon your return from Vietnam. 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 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 16 May 2018. Additional information was requested from you on 21 February 2018, but when it was not received, a comprehensive review of your entire service record revealed that there were no medical or clinical records that mention your mental health during your time in service. The AO thus concluded that there is currently insufficient evidence to support your claim. The AO was provided to you on 17 May 2018, and you were given 30 days in which to submi 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 honorable service from 8 January 1966 to 7 January 1969 and your statement  that you were "not with a good mind." The Board, however, concurred with the AO and determined that there was insufficient evidence to support your request for a discharge upgrade. Even under the liberal consideration standard, the Board found the seriousness and frequency of your misconduct warranted an 0TH characterization of service. Finally, the Board noted that you received a substantial benefit from being allowed to separate with an 0TH characterization rather than risk greater punishment at a court-martial.

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,
 
Executive Director