Docket No: 10644-19 Ref: Signature Date 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. A three-member panel of the Board, sitting in executive session, considered your application on 29 January 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) from a qualified mental health provider, and applicable statutes, regulations, and policies, to include the 25 August 2017 guidance from the Office of the Under Secretary of Defense for Personnel and Readiness (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) (Kurta Memo, Hagel Memo, and Wilkie Memo collectively, “Clemency Memos”). You enlisted in the Marine Corps on 2 July 2007. Your pre-enlistment physical examination and medical history noted no psychiatric or neurologic conditions or symptoms. On 12 June 2008 you received non-judicial punishment (NJP) for violating a lawful general order for driving on a suspended license and while your on-base driving privileges were suspended. On 2 January 2011 you were arrested and held in custody by the Police Department for spousal physical abuse. On 1 April 2011 you were issued a “Page 11” counseling warning for such assault. On 15 April 2011 you received NJP for missing movement and making false official statements. On 5 October 2012 you were convicted at a General Court-Martial (GCM) of two specifications of false official statements, two specifications of assault, and three weapons-related violations. However, you conviction was overturned on evidentiary grounds. On 31 March 2015 pursuant to your guilty pleas, you were convicted at a GCM of assault consummated by a battery upon your spouse, and two specifications of wrongful firearms possession. You received as punishment two years of confinement, total forfeitures of pay for two years, a reduction in rank to the lowest enlisted paygrade (E-1), and a discharge from the Marine Corps with a Bad Conduct Discharge (BCD). Upon the completion of appellate review in your case, on 21 December 2016 you were discharged from the Marine Corps with a BCD and assigned an RE-04 reentry code. On 22 April 2019 this Board denied your initial petition for a discharge upgrade. As part of the review process, the Board’s 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 15 January 2021. The MD observed that your in-service records did not contain direct evidence of diagnosed TBI/PTSD or psychological or behavioral changes indicating TBI/PTSD. The MD noted that your description of PTSD symptoms, coupled with post-discharge Veterans Affairs (VA) clinical records documenting your traumatic wartime experiences and diagnoses gave credibility to your contentions. The MD determined that your traumatic brain injury (TBI) originated from suicide attempts well after your misconduct occurred and was not considered mitigating for your in-service misconduct. The MD concluded by opining that there was sufficient indirect evidence that you exhibited symptoms and behaviors indicative of PTSD incurred during your military service and that your misconduct may be at least partially mitigated by PTSD. The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in your case in accordance with the Clemency Memos. These included, but were not limited to: (a) you have been diagnosed with PTSD, (b) you suffered a TBI as a result of your PTSD while attempting to kill yourself riding a motorcycle in February and November of 2016, (c) your combat tour changed you and led to the events resulting in your court-martial where you received a BCD, (d) you believe that your combat tour along with this court-martial ordeal took a toll on your psychological stability, and (e) you are currently pursuing a degree in nursing. However, given the totality of the circumstances, the Board determined that your request does not merit relief. In accordance with the Clemency 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 mental health conditions and/or related symptoms and your misconduct, and determined contrary to the AO, that any such mental health conditions did not partially mitigate the misconduct that formed the basis of your discharge. Even under the liberal consideration standard, the Board concluded that your misconduct was not due to mental health or mental health-related symptoms. Moreover, even if the Board assumed that your misconduct was somehow attributable to any mental health conditions, the Board unequivocally concluded that the severity of your misconduct far 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. 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 serious misconduct and total disregard for good order and discipline clearly 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 concluded that despite your contentions, this is not a case warranting clemency. You were properly convicted at a GCM of serious misconduct involving domestic violence, and the Board did not find any evidence of an error or injustice in this application that warrants upgrading your BCD. 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,