Dear :  
 
This is in reference to your application for correction of your naval record pursuant to Section 1552 of Title 10, United States Code.  After careful and conscientious consideration of relevant portions of your naval record and your application, the Board for Correction of Naval Records (Board) found the evidence submitted insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied.      
 
Although you did not file your application in a timely manner, the statute of limitations was waived in accordance with the 25 August 2017 guidance from the Office of the Under Secretary of Defense for Personnel and Readiness (Kurta Memo).  A three-member panel of the Board, sitting in executive session, considered your application on 5 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 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) furnished by a qualified mental health provider, and applicable statutes, regulations, and policies, to include the Kurta Memo, the 3 September 2014 guidance from the Secretary of Defense regarding discharge upgrade requests by Veterans claiming post-traumatic stress disorder (PTSD) (Hagel Memo), and the 25 July 2018 guidance from the Under Secretary of Defense for Personnel and Readiness regarding equity, injustice, or clemency determinations (Wilkie Memo).   
 
You enlisted in the Marine Corps on 4 November 2002.  Your pre-enlistment physical examination and medical history noted no psychiatric or neurologic conditions or symptoms.  On 17 June 2005 you were awarded the Purple Heart Medal for head and face injuries sustained in ,  on 5 June 2005.   
 
On 4 March 2008 you were issued a “Page 11” counseling warning for failing to maintain USMC body composition standards.  On 27 May 2008 you received another “Page 11” warning for assault, and drunk and disorderly conduct.  On 28 August 2008 you received non-judicial 
punishment (NJP) for drunk driving, and you were also issued another “Page 11” counseling warning.  On 25 November 2009 you received NJP for insubordinate conduct, failure to obey a lawful order, resisting apprehension, and drunk and disorderly conduct. 
 
On 3 June 2011, pursuant to your guilty pleas, you were convicted at a General Court-Martial (GCM) of:  (a) anal sodomy with a child under age twelve, (b) assault consummated by a battery upon your spouse, (c) wrongfully communicating death threats to your spouse, (d) indecent assault to a child under age twelve, and (e) indecent acts upon a female under age sixteen.  You received as punishment fifty-one (51) years of confinement, a reduction in rank to the lowest enlisted paygrade (E-1), and a discharge from the Marine Corps with a Dishonorable Discharge (DD).  Based on the terms of your pre-trial agreement, all confinement in excess of twenty-five (25) years was suspended.  Upon the completion of appellate review in your case, on 12 May 2014 you were discharged from the Marine Corps with a DD and assigned an RE-4 reentry code.   
 
As part of the Board review process, the BCNR Physician Advisor who is a medical doctor and Fellow of the American Psychiatric Association (MD), reviewed your contentions and the available records and issued an AO dated 19 January 2021.  The MD observed that your in-service records did contain direct evidence of diagnosed PTSD due to combat and a traumatic brain injury (TBI) incurred from combat operations, as well as an alcohol dependency diagnosis in August 2006.  The MD observed that you were also provided evaluations and treatment for your substance abuse, PTSD, and TBI in-service.  The MD determined that some aspects of your misconduct can be associated with service members who experience combat related PTSD/TBI such as substance abuse as a maladaptive coping mechanism, irritability and anger outbursts involving disrespect or assault/domestic violence, and social isolation and other avoidant behaviors leading to UA/missing unit movements. However, the MD determined that the range of behaviors and five-year span of your predominant misconduct leading to your GCM involving repeated sexual misconduct with a minor child is not the type of behavior typically associated with, or attributable to, PTSD or TBI.  The MD concluded by opining that there was sufficient direct evidence that you incurred PTSD and TBI as a result of his military service, but that only some of his misconduct may be mitigated by your experience of PTSD/TBI.   
 
The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in your case in accordance with the Kurta, Hagel, and Wilkie Memos.  These included, but were not limited to your contentions that:  (a) your discharge was based on actions associated with PTSD and TBI conditions that did not receive the proper care and treatment; (b) although you were determined to be non-deployable after your second  deployment you were deployed a third time; and (c) your DD Form 214 reflects your entire enlistment instead of reflecting certain breaks in service.  However, given the totality of the circumstances, the Board determined that your request does not merit relief.    
 
In accordance with the Kurta, Hagel, and Wilkie Memos, the Board gave liberal and special consideration to your record of service, and 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 nexus between any 
PTSD/TBI and/or related symptoms and the overwhelming majority of your GCM offenses, and determined that any such mental health conditions did not mitigate such misconduct forming the basis of your discharge.  Even under the liberal consideration standard, the Board concluded that your sexual misconduct with a minor was not due to mental health conditions or mental health-related symptoms.  Moreover, even if the Board assumed that your GCM misconduct was somehow attributable to any mental health conditions, the Board concluded that the severity of your misconduct outweighed any and all mitigation offered by your mental health conditions, whether it was PTSD, TBI, and/or their related symptoms.  Furthermore, the Board noted that the evidence of record did not demonstrate that you were not mentally responsible for your conduct or that you should not be held accountable for your actions.  The Board also noted that there is no provision of federal law or in Navy/Marine Corps regulations that allows for a discharge to be automatically upgraded after a specified number of months or years.  Additionally, absent a material error or injustice, the Board generally will not summarily upgrade a discharge solely for the purpose of facilitating VA benefits, or enhancing educational or employment opportunities.  Accordingly, the Board determined that there was no impropriety or inequity in your discharge, and even under the liberal consideration standard, the Board concluded that your egregious sex offenses and total disregard for good order and discipline clearly merited your receipt of a DD. 

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 concluded that despite your contentions this is not a case warranting any clemency.  You were properly convicted at a GCM of serious misconduct involving domestic violence and repeated sexual misconduct with minors, and the Board did not find any evidence of an error or injustice in this application that warrants upgrading your DD.  The Board carefully considered any matters submitted regarding your post-service conduct and accomplishments, however, even in light of the Wilkie Memo and reviewing the record holistically, the Board still concluded that given the totality of the circumstances 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,