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

Docket No. 11633-19 
Ref: Signature Date 


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. 

Although your application was not filed in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your case on its merits.  A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 13 February 2020.  The names and votes of the members of the panel 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 and applicable statutes, regulations and policies. 
 
A review of your record shows that you entered active duty with the Marine Corps in April 1995.  In 1999, you made two suicide gestures while intoxicated and had non-judicial punishment imposed on you for assault in August 1999.  Subsequently, you entered alcohol rehabilitation on 9 September 1999 and completed treatment on 5 October 1999.  Records show that you relapsed into consuming alcohol in January 2000.  On 2 October 2000, you were admitted for medical treatment after consuming Tylenol while intoxicated.  This resulted in a second non-judicial punishment for self-injury without intent to avoid service under Article 134 of the Uniform Code of Military Justice.  Based on your two non-judicial punishments, you were notified of administrative separation processing for pattern of misconduct on 25 October 2000.  After being medically cleared for separation, you were discharged from the Marine Corps on 16 February 2001 with an Other than Honorable characterization of service. 

The Board carefully considered your arguments that you were erroneously discharged for pattern of misconduct.  You assert that your second non-judicial punishment was invalid since it was based on a suicide attempt.  You further argue that you deserve to have your narrative reason for separation changed to disability.  Unfortunately, the Board disagreed with your rationale for relief.  

First, the Board concluded the preponderance of the evidence supports the Marine Corps decision to administratively separate you for pattern of misconduct.  Marine Corps Order 1900.16 states that a Marine may be separated for pattern of misconduct when there is two or more discreditable involvements with military authority or two or more instances of conduct prejudicial to good order and discipline.  In your case, the Board determined that the two non­judicial punishments in your record qualify as a pattern of misconduct since both instances involved serious discreditable involvement with military authorities and were prejudicial to good order and discipline.  Your argument that your 2 October 2000 suicide gesture was not a legal basis for imposing non-judicial punishment was determined to be without merit.  Under Article 134 (Self-injury without intent to avoid service), Uniform Code of Military Justice, a service member commits an offense under this article if intentional injury is self-inflicted upon the member and the conduct of the member was prejudicial to the good order and discipline in the armed forces.  Discussion notes indicate bona fide suicide attempts should not be charged as criminal offenses and directs convening authorities to consider the circumstances involved in the incident to determine whether the attempt was bona fide or not.  In your case, the Board agreed with your Commanding Officer that your consumption of Tylenol was, more likely than not, a suicide gesture vice a bona fide suicide attempt.  The medical evidence shows you consumed Tylenol after your spouse left the residence during a domestic dispute.  You informed her of your Tylenol consumption upon her return to the residence later in the morning indicating you wanted her to be aware of your actions and desired treatment.  In making their finding, the Board considered that you had a previous history of similar behavior, including an incident where you lacerated yourself in front of your spouse that showed you were willing to make a display of a suicide ideation without intent to actually commit suicide.  Further, the Board noted that you consumed an over the counter pain medication, vice using a more lethal source, during your October 2010 incident that also indicated it was a suicide gesture vice a suicide attempt. When combined with the 9 November 2000 Battalion Surgeon opinion that you were not mentally ill and influenced by your alcohol consumption, the Board determined the preponderance of the evidence did not support a finding that your October 2000 consumption of Tylenol was a bona fide suicide attempt.  As a result, the Board found that you qualified for punishment under Article 134 since you intentionally injured yourself by consuming too much Tylenol and such behavior was prejudicial to good order and discipline within your command.
 
Second, the Board determined you did not qualify for a disability discharge based on three factors.  One, you were medically cleared for release from active duty on 30 November 2000.  The Manual of the Medical Department Chapter 15-20 requires separation examinations and evaluations for active dutymembers and states “comprehensive evaluations are conducted for the purposes of ensuring that Service members have not developed any medical conditions while in receipt of base pay that might constitute a disability that should be processed by the Physical Evaluation Board (PEB) and to ensure Servicemembers are physically qualified for recall to additional periods of active duty.  Thus, the standards for being physically qualified to separate are the same as those being qualified to continue active duty Service … .” Since you were medically cleared to separate, the Board concluded the medical evidence supports a finding that you were not unfit for continued naval service at the time of your discharge.  Two, the Battalion Surgeon provided a medical opinion on 9 November 2000 that you were not mentally ill.  The Board considered this evidence supportive of the 30 November 2000 medical determination that you were fit for release from active duty.  Three, based on your administrative separation for misconduct, the Board concluded you were ineligible for disability processing even if there was evidence of unfitness due to a disability condition.  Military disability regulations direct misconduct processing to supersede disability processing.  Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to your record.  

It is regretted that the circumstances of your case are such that favorable action cannot be taken.  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,