DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 9530-18 Ref: Signature Date This 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 three-member panel of the Board, sitting in executive session, considered your application on 2 December 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, relevant portions of your naval record, as well as applicable statutes, regulations, and policies. In addition, the Board considered the 4 March 2019 advisory opinion furnished by a Navy mental health professional, which was previously provided to you. You enlisted in the Marine Corps and began a period of active duty on 14 May 1973. On 5 February 1974, you received nonjudicial punishment (NJP) for failure to go to your appointed place of duty, and failure to obey a lawful order. On 4 March 1974, you were placed on legal hold for assault on two host country policemen in . On 22 August 1974, you were convicted by special court-martial (SPCM) of two specifications of unauthorized absence (UA), totaling 47 days, and disobeying a lawful order. On 25 January 1977, you requested an other than honorable (OTH) discharge for the good of the service for three specifications of UA totaling 736 days. Prior to submitting this request for discharge, you conferred with a qualified military lawyer, were advised of your rights, and warned of the probable adverse consequences of accepting such a discharge. Subsequently, your request for discharge was granted and on 15 February 1977, you were separated with an other than honorable characterization of service in lieu of trial by court-martial. As a result of this action, you were spared the possibility of an additional court-martial conviction, a punitive discharge, and confinement at hard labor. 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,” 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.” A Navy mental health professional reviewed your request for correction to your record and provided the Board with an AO regarding your assertion that you were suffering from a mental health condition during your service. The AO noted, you submitted no post-service clinical evidence in support of your claim regarding a mental health condition. There is no indication in your service record that you were suffering from a mental health condition in-service or that you were not aware of right and wrong when you waived your right to a trial by court-martial. Post-service medical records describing your mental health condition and its specific link to your in-service misconduct are required to render an opinion. Based on the available evidence, it was opined that there is insufficient evidence that your misconduct should be attributed to a mental health condition. The Board carefully weighed all potentially mitigating factors, such as your record of service, and desire to upgrade your discharge. The Board also consider your assertions that, while you were in boot camp, you discovered your father was involved in free masonry and witchcraft, which provoked grief and other emotions, causing you hardship on base and at home. Additionally, the Board considered your contention that you were not of the age of competent responsibility to determine the mental health condition you were suffering from; and, when you were having these mental problems, the psychiatrist did not believe it. The Board concluded these factors and assertions were not sufficient to warrant changing your characterization of service given your NJP, SPCM conviction, the referral of charges to a court-martial, and your request for discharge. The Board believed that considerable clemency was extended to you when your request for discharge was approved. Further, the Board concurred with the AO that based on the available evidence, there is insufficient evidence that your misconduct should be attributed to a mental health condition. 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, 1/5/2020