DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 9826-18 Ref: Signature Date Dear This letter is in reference to your reconsideration request dated 19 November 2018. You previously petitioned the Board for Correction of Naval Records (Board) and were advised that your application had been disapproved. Your case was reconsidered in accordance with Board procedures that conform to Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004). 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 three-member panel of the Board, sitting in executive session, considered your application on 9 April 2020. 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, an Advisory Opinion (AO) from a Navy mental health provider, and applicable statutes, regulations and policies. You enlisted in the Marine Corps on 14 June 1973. On 28 September 1973, you began an unauthorized absence (UA) that lasted until your arrest in on 16 January 1974, a period of time lasting 110 days. On 21 January 1974, you went to non-judicial punishment for your 110-day UA and received as punishment 30 days of correctional custody and forfeitures of pay. On 1 March 1974, you commenced another UA period that lasted 123 days until your arrest in on 2 July 1974. Less than one month later you began another UA period that lasted seven days until you were arrested on 5 August 1974. On 26 September 1974, you submitted a voluntary written request for a separation in lieu of trial by court-martial for your last two UA offenses. However, the General Court-Martial Convening Authority denied your request for a voluntary undesirable discharge on 29 October 1974. On 1 November 1974, you were convicted at a Special Court Martial (SPCM) for two UA charges. You received as punishment three months of confinement at hard labor, forfeitures of pay, and a discharge from the Marine Corps with a Bad Conduct Discharge (BCD). The Court of Military Review affirmed your sentence and conviction on 5 May 1975. Following completion of the post-trial appellate review process, you were discharged from the Marine Corps with a BCD. In November 1994, the Board denied your discharge upgrade petition. In your 1994 petition, you claimed your misconduct was due to a substance use disorder. Your contention that you suffered from post-traumatic stress disorder (PTSD) was fully and carefully considered by the Board in light of the Secretary of Defense's 3 September 2014 memorandum, “Supplemental Guidance to MilitaryBoards 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 provider (MHP), reviewed your contentions and the available records, and provided the Board the 16 September 2019 AO. The MHP noted that you did not submit any clinical documentation or treatment records to support a mental health diagnosis. The MHP also observed that while on active duty you did not report any mental health symptoms or substance use disorders, and that you denied experiencing any mental health symptoms at your discharge physical. The MHP concluded by opining that there is insufficient evidence to attribute your misconduct to a service-connected mental health condition. The Board carefully weighed all potentially mitigating factors, such your contentions that included, but were not limited to: that you feel you deserve an upgrade and graduated with high honors, that you were physically beaten by drill instructors throughout your training and that caused you to go UA, that you were diagnosed with PTSD, and that you have many physical problems and need an upgrade so you can get medical care. Unfortunately, the Board determined these mitigating factors and contentions were not sufficient to warrant upgrading your discharge or granting any other relief in your case. In accordance with the published guidance, the Board gave liberal and special consideration to your record of service and to your contentions about any traumatic or stressful events you experienced and their possible adverse impact on your service. However, even under the liberal consideration standard, the Board concluded that there was no credible and convincing evidence that you suffered from any type of PTSD while on active duty, or that any such mental health condition was related to or mitigated the misconduct that formed the basis of your discharge. The Board also noted that there is no evidence in your available service records to substantiate your claim of physical abuse by drill instructors. Moreover, the Board observed that you did not submit any clinical documentation or post-service treatment records to support your mental health claims despite a request from Board on 18 June 2019 to specifically provide additional documentary material. Additionally, absent a material error or injustice, the Board generally will not summarily upgrade a discharge solely for the purpose of facilitating benefits from the Department of Veterans Affairs or enhancing educational or employment opportunities. Accordingly, the Board determined that there was no probable material error or injustice in your discharge, and even under the liberal consideration standard, the Board concluded that your serious misconduct and disregard for good order and discipline merited your receipt of a BCD. The Board also noted that, although it cannot set aside a conviction, it might grant clemency in the form of changing a characterization of discharge, even one awarded by a court-martial. However, the Board unanimously concluded that, despite your contentions, this is not a case warranting any clemency. The fact remains that you were properly convicted at a SPCM of serious misconduct, and the Board did not find any evidence of an error or injustice in this application that warrants upgrading your BCD. Additionally, the Board reviewed your application under the recent guidance provided in the Under Secretary of Defense’s memorandum dated 25 July 2018 entitled, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations” (USD Memo). The purpose of the USD Memo is to ease the process for veterans seeking redress and assist Boards for Correction of Military/Naval Records “in determining whether relief is warranted on the basis of equity, injustice, or clemency.” The USD Memo noted that “increasing attention is being paid to…the circumstances under which citizens should be considered for second chances and the restoration of rights forfeited,” and that “BCM/NRs have the authority to upgrade discharges or correct military records to ensure fundamental fairness.” The USD Memo sets clear standards and principles to guide BCM/NRs in application of their equitable relief authority and further explains that boards shall consider a number of factors to determine whether to grant relief. However, even in light of the USD Memo, the Board still concluded that, given the totality of the circumstances and your pattern of misconduct, your request does not merit relief. It is regretted that the circumstances of your reconsideration petition 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 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,