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

Docket No: 1555-19 
Ref: Signature Date 

Dear : 

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 application on its merits.  A three-member panel of the Board, sitting in executive session, considered your application on 26 May 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, as well as applicable statutes, regulations, and policies.  In addition, the Board considered the 10 December 2019 advisory opinion (AO) furnished by a Navy mental health professional, which was previously provided to you. 

You enlisted in the Marine Corps and began a period of active duty on 29 December 1964. You served in Vietnam from 24 March 1966 to 26 August 1966.  On 9 January 1967, you were found guilty at summary court-martial (SCM) of seven days of unauthorized absence (UA).  During the period from 21 February 1967 to 4 April 1968, you received five nonjudicial punishments (NJPs) for failing to go to your appointed place of duty, drinking of alcoholic beverages within a four-hour period prior to assuming duty, four periods of UA totaling 18 days, carrying a concealed weapon (knife), and breaking restriction.  On 3 May 1968, you were, convicted by a second SCM of three days of UA.  You were twice convicted by special court-martial (SPCM), once on 12 September 1968, of two specifications of UA and again on 10 April 1969, of another two specifications of UA.  As a result of your last SPCM, you were sentenced to confinement at hard labor, forfeiture of pay, and a bad conduct discharge (BCD).  You received a BCD on 4 February 1970. However, on 14 April 1976, you were awarded a clemency discharge (CD) pursuant to Presidential Proclamation 4313.  On 16 June1977, the Navy Discharge Review Board, changed your clemency discharge to General (under honorable conditions) for the convenience of the government pursuant to Presidential Proclamation 4313. 

Your request was fully and carefully considered by the Board in light of the Secretary of Defense's 3 September 2014 memorandum, “Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requested by Veterans Claiming Post Traumatic Stress Disorder,” the 25 August 2017 memorandum, “Clarifying Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Considering Requests by Veterans for Modification of their Discharge Due to Mental Health Conditions, Sexual Assault, or Sexual Harassment,” and the 25 July 2018 memorandum, “Guidance to Military Discharge ReviewBoards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations.” 

A Navy mental health professional reviewed your request for correction to your record and provided the Board with an AO regarding your assertion that you were suffering from PTSD during your service.  Your claim is partially supported by the available evidence, in that your experience of combat and injuries from combat are consistent with an experience that leads to the development of PTSD and clearly confirm the service connection.  However, there is insufficient evidence to comment on the link between your PTSD and in-service misconduct and on the appropriateness of changing the characterization of your discharge.

The Board carefully weighed all potentially mitigating factors, such as your record of service, desire to upgrade your discharge, and your contention that after years of struggle you sought assistance from the Department of Veterans Affairs (VA) and have been diagnosed as suffering from PTSD from combat in Vietnam. Additionally, you assert that you were in physical and emotional pain from your time in combat, were unaware of the metal health issues resulting from the trauma you endured, and believe the PTSD affected your conduct at the time.  The Board also considered your assertion that you learned that your upgrade, granted by President Ford in 1978, did not lift the bar placed on VA benefits.
 
The Board concluded these factors and assertions were not sufficient to warrant a change to your discharge given your misconduct, which resulted in five NJPs, two SCMs and two SPCM convictions. Further, the Board noted that you received a pardon and a CD, under the President Ford Clemency Program, which changed your original discharge to a general characterization of service.  However, neither the VA nor DoD considers a recipient of a CD that has been upgraded to a General (under honorable conditions) by a Special Discharge Review Board to be entitled to any benefits denied by reason of the original discharge.  The Board concluded a further change that would make you eligible for VA benefits was not warranted.  Finally, the Board concurred with the AO that there is insufficient evidence to comment on the link between your PTSD and in-service misconduct and the appropriateness of changing your discharge characterization of service. 

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 the 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,