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

Docket No: 1816-19 
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 19 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 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. 

Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to their understanding of the issues involved.  Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record.
 
You enlisted in the Marine Corps on 13 December 2000. On 8 October 2003, you received a written page 11 counseling warning (Page 11) documenting your improper use of the government travel charge card and for your delinquency in repaying your account.  On 3 December 2004, you received a written Page 11 documenting your lack of accountability with a high value item. 

On 27 August 2006 you were arrested by civilian authorities after you were involved in a traffic accident while driving with a suspended license.  You struck and fatally injured a pedestrian with your car, and instead of remaining on site, you fled the scene of accident. On 15 September 2006, you received a written Page 11 notifying you that you were not recommended for promotion to E-5 while pending adjudication of civil charges.  Subsequently, on 25 September 2006 you were charged by civilian authorities for a simple assault.  Further, on 2 October 2006 you received a written Page 11 documenting unauthorized absence (UA) and unprofessional conduct.  On 17 November 2006, you received another Page 11 documenting UA. 

On 13 December 2006, you were notified that you were being processed for an administrative discharge by reason of misconduct due to the commission of a serious offense, and misconduct due to a pattern of misconduct.  You expressly waived in writing your rights to consult with counsel, but you elected to present your case to an administrative separation board.  On 1 February 2007, an administrative separation (adesp) board convened to hear your case.  Following the presentation of witnesses and evidence, the adsep board members voted unanimously that misconduct was supported by a preponderance of the evidence and to separate you from the Marine Corps with an other than honorable (OTH) characterization of service.  The adsep board, however, voted to suspend your separation for a period of 12 months.  The chain of command recommended and directed your OTH discharge, but disapproved the suspended separation recommendation, which was entirely within their discretion.  Ultimately, on 19 April 2007, you were discharged from the Marine Corps for misconduct with an OTH characterization of service and assigned an “RE-4” reentry code.
 
On 7 August 2018, the Naval Discharge Review Board (NDRB) determined that your discharge was proper as issued and no change was warranted.  The NDRB noted that you were not diagnosed with post-traumatic stress disorder (PTSD) while in-service, and that you did not provide evidence of a post-service diagnosis or treatment for PTSD.  The NDRB concluded by determining that there was not sufficient evidence to suggest that PTSD mitigated your misconduct. 

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 MilitaryDischarge ReviewBoards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations.” 

A Navy mental health provider (MHP), reviewed your contentions and the available records and provided the Board an AO dated 7 January 2020. The MHP noted that you did not submit any in-service or post-service clinical documentation or treatment records to support a mental health diagnosis.  The MHP concluded by opining that there is insufficient evidence you suffered from any service-connected PTSD or other mental health conditions. 

The Board carefully weighed all potentially mitigating factors, such your contention that the misconduct resulting in your discharge was the result of PTSD you had struggled with since your time in combat.  Unfortunately, the Board determined this mitigating factor and contention was not sufficient to warrant upgrading your discharge or granting any other relief in your case. 

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 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.  The Board also noted that fleeing the scene of a fatal accident was willful misconduct and would not be excused by any purported mental health condition.  Moreover, the Board observed that you did not submit any clinical documentation or post-service treatment records to support your mental health claims despite a request from the Board on 25 July 2019 to specifically provide additional documentary material.  Accordingly, Board determined that there was insufficient evidence to attribute your misconduct to a service-connected mental health condition, that there was no probable material error or injustice in your discharge, and even under the liberal consideration standard, the Board concluded that your serious 
misconduct and disregard for good order and discipline merited your receipt of an OTH.
 
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 the 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. 

Sincerely,