Docket No. 2221-19
Ref:Signature Date
  
Dear  : 
 
This letter is in reference to your reconsideration request dated 6 February 2019.  You previously petitioned the Board for Correction of Naval Records (Board) and were advised that your application had been disapproved.  Your case was reconsidered in accordance with Board procedures that conform to Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004).  After careful and conscientious consideration of the entire record, the 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 25 June 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, the 8 April 2020 Advisory Opinion (AO) from a Navy mental health provider, and applicable statutes, regulations and policies. 
 
You enlisted in the Marine Corps on 23 June 1966 at the age of eighteen.  On 9 November 1966, you provided a voluntary statement to the Office of Naval Intelligence (ONI) admitting that you first realized you possessed homosexual tendencies while in recruit training, but you had never engaged in homosexual conduct.  However, on 13 December 1966, you made a second voluntary statement to ONI.  You stated that it wasn’t true that you had never engaged in a homosexual act.  You admitted that, prior to joining the Marine Corps, you were picked up for hitchhiking and participated in homosexual acts for money and fare to New Jersey in January 1966. 
 
On 31 March 1967, pursuant to your guilty plea, you were convicted at a Summary Court-Martial of a period of unauthorized absence (UA) lasting nineteen (19) days.  As punishment, you received a reduction in rank to the lowest enlisted paygrade (E-1) and forfeitures of pay. 
 
On 6 June 1967, you were notified that you were being processed for an administrative discharge by reason of misconduct due to fraudulent enlistment in violation of Uniform Code of Military Justice Article 83.  You consulted with counsel and elected in writing to have your case heard by an administrative separation board (Adsep Board).  In the interim, on 26 June 1967 you went to non-judicial punishment (NJP) for UA lasting four days. 
 
On 13 July 1967, an Adsep Board convened in your case and you were represented by counsel.  Following the presentation of evidence and witness testimony, the Adsep Board members determined by a preponderance of the evidence that you committed the misconduct as charged.  Subsequent to their misconduct finding, the Adsep Board members recommended that you be separated from the Marine Corps with an undesirable discharge due to misconduct under other than honorable (OTH) conditions. 
 
In the interim, on 15 December 1967 pursuant to your guilty plea, you were convicted at a Special Court-Martial (SPCM) for UA lasting 35 days.  On 22 January 1968, you went to NJP for insubordinate conduct toward a non-commissioned officer.  Ultimately, on 29 March 1968 you were discharged from the Marine Corps with an OTH characterization of service. 
 
The Don’t Ask, Don’t Tell Repeal Act of 2010, and the Under Secretary of Defense Memo of 20 September 2011 (Correction of Military Records Following Repeal of Section 654 of Title 10, United State Code), both set forth the Department of the Navy’s current policies, standards, and procedures for correction of military records following the “don’t ask, don’t tell” (DADT) repeal.  The current policy now provides service Discharge Review Boards with the guidance to grant requests to change the characterization of service to “honorable” or “general (under honorable conditions),” narrative reason for discharge to “secretarial authority,” separation code to “JFF,” and reentry code to “RE-1J” when the original discharge was based solely on DADT or a similar policy in place prior to enactment of it, and there are no aggravating factors in the record, such as misconduct.  (emphasis added). 
 
Your contention that you suffered from post-traumatic stress disorder (PTSD) was also fully and carefully considered by the Board in light of the guidance provided by the Secretary of Defense’s Memorandum, “Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requested by Veterans Claiming Post Traumatic Stress Disorder” of  3 September 2014, and the “Clarifying Guidance to Military Discharge Review Board 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” memorandum of 25 August 2017. 
 
A Navy military mental health provider (MHP), reviewed your contentions and the available records, and provided the Board an AO dated 8 April 2020.  The MHP noted that you did not submit any clinical documentation or post-service treatment records to support a mental health diagnosis.  The MHP concluded that there is insufficient evidence of a service-connected mental health condition that may have mitigated Petitioner’s misconduct. 
 
The Board carefully weighed all potentially mitigating factors, such your contentions that you tried to serve the USMC proudly, that all you wanted to do was serve your country defending the USA in Vietnam, that you did not want to be a mechanic and wanted to go overseas and serve in Vietnam, that you love your country, and you have done a lot in your life for the good of your family and others.  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. 
 
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 evidence that you suffered from 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.  Additionally, the Board observed that you did not submit any clinical documentation or post-service treatment records to support your mental health claim despite a request from the Board on 31 July 2019 to specifically provide additional documentary material. 
 
The Board also concluded that the DADT policy guidance did not apply to the circumstances surrounding your discharge because of your failure to disclose in your pre-enlistment paperwork that you performed sexual acts for money and because of your extensive misconduct, which resulted in three NJPs and conviction by a SPCM.  In the end, the Board concluded that you received the correct discharge type, characterization, narrative reason, and reentry code based on the totality of your circumstances, and that such action was in accordance with all Department of the Navy directives and policy at the time of your discharge. 
 
Lastly, the Board noted that character of military service is based, in part, on conduct and overall trait averages which are computed from marks assigned during periodic evaluations.  Your overall active duty trait average was 2.6 in conduct.  Marine Corps regulations in place at the time of your discharge required a minimum trait average of 4.0 in conduct (proper military behavior), for a fully honorable characterization of service.  The Board concluded that your conduct marks during your active duty career were a direct result of your pattern of serious misconduct, which ultimately supported the separation authority’s decision to issue you an OTH characterization of discharge.  Accordingly, the Board determined that there was no probable material error or injustice in your discharge, and even under the liberal consideration standard, the Board found that your disregard for good order and discipline and serious misconduct merited your receipt of an OTH discharge. 
 
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 and your discreditable involvement with military authorities, your request does not merit relief. 
 
It is regretted that the circumstances of your reconsideration petition 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 the absence of new matters for reconsideration, the decision of the Board is final, and your only recourse would be to seek relief at no cost to the Board from a court of appropriate jurisdiction. 
 
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,