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

Docket No: 10401-19 

Dear : 

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. 

A three-member panel of the Board, sitting in executive session, considered your application on 15 March 2021. The names and votes of the panel members 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 the 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, to include the 25 July 2018 guidance from the Under Secretary of Defense for Personnel and Readiness regarding equity, injustice or clemency determinations (Wilkie Memo). In addition, the Board considered the advisory opinion (AO) furnished by a qualified mental health professional dated 24 January 2021, which was previously provided to you. 

You enlisted in the Marine Corps and began a period of active duty on 29 November 1999. On 25 August and 8 September 2000, you received nonjudicial punishment (NJP) for 29 days of unauthorized absence (UA), failure to obey an order, and drinking while on restriction. On 26 February 2002, you were notified of that you were the subject of a Competency Review Board (CRB). After being afforded your rights, you elected to waive your right to appear before the CRB. Subsequently, the CRB found that you were UA from 6 July 2001 to 17 February 2002. It was opined that your UA showed professional incompetence and a lack of self-discipline. It was recommended that you be reduced to the rank of Private (E-1). You were informed that as a result of your waiver of a CRB, you would be administratively reduced to paygrade E-1. On 28 February 2002, you submitted a written request for an other than honorable (OTH) discharge in lieu of trial by court-martial for 226 days of unauthorized absence. Prior to submitting this request for discharge, you conferred with a qualified military lawyer, were advised of your rights and were warned of the probable adverse consequences of accepting such a discharge. Subsequently, your request for discharge was granted, and on 29 March 2002, you received an other than honorable discharge in lieu of trial by court-martial. As a result of this action, you were spared the stigma of a court-martial conviction and the potential penalties of 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 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. 

A qualified mental health professional reviewed your request for correction to your record and provided the Board with an AO regarding your assertion that you was suffering from Post-Traumatic Stress Disorder (PTSD) during your service. The AO noted that based on the available objective evidence there is insufficient evidence of a mental health condition at the time of your enlistment attributable to your military service that may have mitigated your misconduct. 

The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in your case in accordance with the Wilkie Memo. These included, but were not limited to your statement that you made a mistake in choosing your discharge in lieu of court-martial for family reasons, and you have been having “mental health problems” since discharge, exacerbated “from the accident in 2015.” You reported, “I have been hospitalized two times in the VA also for my mental health” and had a five-year history of drug and alcohol abuse, and require an upgrade of your discharge to access more VA help. Based upon this review, the Board concluded these potentially mitigating factors were insufficient to warrant relief. Specifically, the Board determined that your misconduct, as evidenced by your two NJPs, lengthy period of UA, the referral of charges to a court-martial and your request for discharge outweighed these mitigating factors. Additionally, the Board concurred with the AO that there is insufficient evidence of a mental health condition at the time of your enlistment attributable to your military service that may have mitigated your misconduct. Accordingly, given the totality of the circumstances, the Board determined that your request does not merit relief. 

You are entitled to have the Board reconsider its decision upon 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, 
3/19/2021