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

Docket No: 11152-19

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 12 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 28 August 1995.  On 28 October 1997 you received a “Page 11” counseling warning (Page 11) documenting your indebtedness and inability to manage your personal affairs.  The Page 11 expressly warned you that any further disciplinary infractions or continuation of deficient performance may result in disciplinary action or administrative separation.  On 19 December 1997 you were issued a Page 11 documenting a personality disorder diagnosis rendering you unfit for duty.  On 23 February 1998 you received another Page 11 for your personality disorder stating that you were going to be separated because your disorder made you unfit for duty.  However, on 28 April 1998 you commenced a period of unauthorized absence (UA) that terminated after 321 days on 15 March 1999.   
 
On 23 April 1999 pursuant to your guilty plea, you were convicted at a Special Court-Martial (SPCM) of your 321-day UA.  You received as punishment, 45 days of confinement, 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 25 January 2001 you were discharged from the Marine Corps with a BCD and assigned an RE-4 reentry code.  
 
As part of the review process, the Board’s Physician Advisor, who is also a medical doctor (MD) and a Fellow of the American Psychiatric Association, reviewed your contentions and the available records, and issued an AO dated 29 January 2021.  The MD observed that you did not identify any specific traumatic stressors, psychological symptoms affecting your performance of your military duties and adherence to military norms and requirements, or a linkage of any mental health conditions to your in-service misconduct.  The MD noted that you also did not provide any in-service or post-discharge evidence of diagnosed mental health conditions, or explanations linking any mental health condition to your in-service misconduct.  The MD further noted that while your in-service records did contain evidence of a personality disorder diagnosis, there was no evidence of either a PTSD diagnosis, or psychological symptoms or behavioral changes indicating a possible mental health condition such as PTSD.  The MD concluded by opining that there was insufficient evidence you incurred PTSD as a result of 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 Hagel, Kurta, and Wilkie Memos.  These included, but were not limited to:  (a) you sustained service-connected medical conditions from your two deployments, (b) your service-connected disabilities were incurred in a combat zone during combat-related operations, (c) you met the terms of your SPCM one year probation period, and (d) your discharge should have automatically upgraded after six months.  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 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 the Board on 10 December 2019 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 benefits from the Department of Veterans Affairs, 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 for mental health conditions, the Board concluded that your serious misconduct and disregard for good order and discipline clearly merited your receipt of a BCD. 
 
The Board determined that personality disorders are characterized by a longstanding pattern of unhealthy behaviors, dysfunctional relationships, and maladaptive thinking patterns.  They are not conditions considered unfitting or disabling, but render service members unsuitable for military service and consideration for administrative separation.  Accordingly, the Board concluded that your personality disorder was a non-disabling disorder of character and behavior, and that it should not be considered a mitigating factor in your misconduct because it did not impair your ability to be accountable for your actions or behaviors. 
 
The Board noted that your contention you met the one-year probation terms of your SPCM is without merit.  As part of your SPCM sentence, the terms of your pre-trial agreement suspended all confinement in excess of 45 days for 12 months.  At the end of the 12 month period of time, only the remaining 30 days representing the suspended portion of confinement was remitted - without any reduction or impact to the other remaining portions of your adjudged SPCM sentence.   
 
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 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,