DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No. 1714-19 Dear : This is in reference to your application of 24 January 2019 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 that 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 12 March 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, relevant portions of your naval record, an Advisory Opinion (AO) from a mental health provider, and applicable statutes, regulations and policies. You enlisted in the Marine Corps on 27 August 2007. On your pre-enlistment documentation, you admitted to receiving anger management treatment two years earlier and completing the treatment with no subsequent issues. On 31 January 2008, you received a written page 11 counseling warning (Page 11) documenting a pattern of misconduct and conduct unbecoming a Marine for using unlawful force to do bodily harm and the use of an offensive gesture to a civilian law enforcement agent. On 24 July 2009, you went to non-judicial punishment (NJP) and received as punishment restriction, extra duties, and suspended forfeitures of pay. On 18 August 2009, the suspended portion of the NJP sentence was vacated and enforced for continuing misconduct involving unauthorized absence (UA) and underage drinking. On 27 August 2009, you went to NJP for failing to obey a lawful order or regulation. On 19 February 2010, you submitted a voluntary written request for separation in lieu of trial by court-martial for offenses involving three separate specifications of assault consummated by a battery on fellow Marines. Prior to submitting this discharge request, you conferred with a military lawyer, at which time you were advised of your rights and warned of the probable adverse consequences of accepting such a discharge. On 15 April 2010, you received a written Page 11 where you acknowledged that you were not recommended for reenlistment due to multiple assault charges and for low “Pro/Con” evaluation marks in service. On 16 April 2010, as you requested, you were separated from the Marine Corps with an other than honorable (OTH) discharge. On 4 December 2013, the Naval Discharge Review Board (NDRB) determined that your discharge was proper as issued and that no change was warranted. The NDRB concluded that nothing indicated that your discharge was in any way inconsistent with the standards of discipline in the United States Marine Corps. The Board observed that you did not proffer post-traumatic stress disorder (PTSD) as possible mitigation to the conduct underlying your OTH discharge with your NDRB application. Your contention that you suffered from PTSD 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 Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations.” A military mental health provider (MHP), reviewed your contentions and the available records, and provided the Board an AO dated 23 December 2019. The MHP determined that your records failed to reveal any evidence that you were diagnosed with, or exhibited any symptoms or behaviors suggestive of a service-connected mental health condition. The MHP noted that you also did not submit any clinical documentation or treatment records to support a mental health diagnosis. The MHP concluded by opining there is insufficient evidence that you suffered from a mental health condition during military service. The Board carefully weighed all potentially mitigating factors, such your contentions that included, but were not limited to: (a) that you have been diagnosed with extreme PTSD and mood disorder, (b) that you are 100% disabled through social security, (c) that due to the stress and traumatic experiences you were witness to you reacted to a situation in a manner in which you would not have normally been a part of, (d) that you are sorry for your actions, and (e) that after 5 years of therapy for PTSD you are coming to terms with your actions. Unfortunately, the Board determined these mitigating factors and contentions were not sufficient to warrant upgrading your discharge or granting any other relief in your case given your voluntary request for a good of the service discharge in lieu of a trial by court-martial, and the overall seriousness of your pattern of misconduct. In accordance with the published guidance, the Board gave liberal and special consideration to your record of service, and your contentions about any traumatic or stressful events that you experienced and their possible adverse impact on your service. However, even under the liberal consideration standard, the Board concluded that there was no credible and convincing evidence that you suffered from any type of PTSD while on active duty, or that any such mental health condition was related to or mitigated the misconduct that formed the basis of your discharge. Moreover, the Board observed that you did not submit any clinical documentation or post-service treatment records to support your mental health claims and multiple years of therapy, despite a request from Board on 30 July 2019 to specifically provide additional documentary material. Even under the liberal consideration standard, the Board concluded that your current characterization does not reflect an error or injustice that merits corrective action. Additionally, the Board reviewed your application under the recent guidance provided in the Under Secretary of Defense’s memorandum dated 25 July 2018 entitled, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations” (USD Memo). The purpose of the USD Memo is to ease the process for veterans seeking redress and assist Boards for Correction of Military/Naval Records “in determining whether relief is warranted on the basis of equity, injustice, or clemency.” The USD Memo noted that “increasing attention is being paid to…the circumstances under which citizens should be considered for second chances and the restoration of rights forfeited,” and that “BCM/NRs have the authority to upgrade discharges or correct military records to ensure fundamental fairness.” The USD Memo sets clear standards and principles to guide BCM/NRs in application of their equitable relief authority, and further explains that boards shall consider a number of factors to determine whether to grant relief. However, even in light of the USD Memo, the Board still concluded that, given the totality of the circumstances, your request does not merit relief. 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.