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 limitation 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) from 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 24 February 1988.  Your pre-enlistment physical and medical history noted no psychological or neurological conditions or symptoms.  On 2 May 1990 your command issued you a “Page 11” warning (Page 11) for an alcohol-related incident, namely a DUI.  You were warned that a failure to take corrective action may result in administrative separation or judicial proceedings.  On 13 August 1991 you received non-judicial punishment (NJP) for violating a lawful order.  On 12 September 1991 you received NJP for breaking restriction.  On 17 December 1991 your command issued you another Page 11 warning for your frequent disobedience of orders. 
 
On 28 February 1992 you were convicted at a Special Court-Martial of the wrongful use of lysergic acid diethylamide (aka LSD).  You received as punishment, four months of confinement, forfeitures of pay for four months, 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 19 January 1994 you were discharged from the Marine Corps with a BCD and assigned an RE-4 reentry code.  
 
As part of the Board review process, the BCNR Physician Advisor who is a licensed clinical psychologist (Ph.D.), reviewed your contentions and the available records, and issued an AO dated 18 January 2021.  The Ph.D. noted that your in-service records do not contain direct evidence of a mental health diagnosis or psychological or behavioral changes indicating any mental health condition.  The Ph.D. also noted that throughout your disciplinary actions, counselings, and judicial processing there were no concerns noted warranting referral to mental health resources.  The Ph.D. further noted that although you contend you had “all PTSD symptoms,” you did not indicate any specific trauma suffered or provide a description of your symptoms or their impact on your daily living activities.  The Ph.D. concluded by opining that the preponderance of available evidence failed to establish you were either diagnosed with, or suffered from, a service-connected mental health condition, or that your misconduct could be attributed to a mental health condition. 
 
The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in your case in accordance with the Hagel, Kurta, and Wilkie Memos.  These included, but were not limited to your contentions that:  (a) you feel that your service was honorable and your service prior to PTSD trauma reflects that; (b) your current discharge status further contributes to your current condition; (c) after your Gulf War service you had PTSD symptoms without receiving any counseling or therapy; and (d) you have suffered a lifetime of symptoms since you left the Marine Corps and are seeking to use VA services for your service-connected issues. However, given the totality of the circumstances, the Board determined that your request does not merit relief.    
 
In accordance with the Hagel, Kurta, 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 mental health conditions and/or related symptoms and your misconduct, and determined that there was insufficient evidence to support the argument that any such mental health conditions mitigated 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-related conditions or symptoms.  Moreover, the Board observed that you did not submit any clinical documentation or treatment records to support your mental health claims despite a request from BCNR on 2 January 2020 to specifically provide additional documentary material.  The Board also 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 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 serious misconduct and 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 any clemency.  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.  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,