Dear This letter is in reference to your reconsideration request dated 8 January 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. A three-member panel of the Board sitting in executive session, considered your application on 23 September 2019. 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 and your previous petition to the Board reflects that you enlisted in the Marine Corps and began a period of active duty on 26 October 1988. Previously, in June 1989, you were involved in an automobile accident and suffered a head injury that resulted in treatment for post-concussive syndrome including blurry vision, post-traumatic headaches, and short-term memory loss. You were placed on light duty until August 1989. Follow-up treatments of your symptoms by neurology showed negative CT scan results and improved headache symptoms when treated with medication. On 26 January 1990, you were found guilty at summary court-martial of assaulting a fellow Marine by cutting him on the neck with a dangerous weapon (straight razor). You were sentenced in part to 30 days’ confinement. After you served your confinement, you returned to duty. Post-conviction treatment reports show that you were not allowed to take medication while in the brig. By 15 May 1990, your headache symptoms had improved, resulting in no further treatment for your post-concussive syndrome symptoms. On 1 August 1990, you were found medically qualified to handle explosives. On 5 August 1990, you received a Meritorious Mast for outstanding service while assigned to , Ordnance Airborne Weapons Support Equipment. The Marine Corps continued to recognize you for outstanding service—you received two Meritorious Masts; a counseling note commenting on your initiative, mission accomplishment, military bearing, maturity, and unlimited growth potential; and a recommendation for the Boost Program. On 2 June 1992, you were meritoriously promoted to the grade of corporal and in December 1992, you were recommended for meritorious promotion to the grade of sergeant. On 6 March 1993, you were medically screened and found qualified for deployment. On 30 July 1993, you assaulted a fellow Marine you believed was having an affair with your wife. On 9 November 1993, you were found guilty at general court-martial of violating Uniform Code of Military Justice Article 92 (violating a lawful general order for concealing a deadly weapon) and Article 128 (aggravated assault for using that weapon to cause grievous bodily harm to another Marine by striking him on the head and various other parts of the body thereby intentionally inflicting grievous bodily harm upon him, to wit, a lacerated wrist and fractured skull). You were sentenced to forfeiture of all pay and allowances, reduction to E-1, confinement for 18 months, and a bad-conduct discharge (BCD). On 16 April 1997, after completion of your appellate review, you were discharged with a BCD. On 3 April 2015, a psychologist opined that you were insane when you committed the misconduct that led to your BCD. Following your discharge, you served as a juvenile corrections officer and as a firefighter. You retired from your firefighting service due to post-traumatic stress disorder (PTSD). In your application for reconsideration, you note that in 2003, prior to your retirement, you suffered a major impact injury after falling from a 24-foot ladder. The Board carefully considered your application for reconsideration, and took into account your request for the following: Whistleblower protection, clemency to expunge your BCD, severance pay and various monetary reimbursements, reinstatement to E-4, meritorious and immediate promotion to E-5, removal of the summary court-martial, reinstatement to E-3 on December 1989 with 30 days’ lost time accounted for, adjustment of your pros/cons, voiding your 5-year enlistment contract and honor the original 4-year enlistment contract, void the general court-martial, changing your name on your Certificate of Release or Discharge from Active Duty (DD Form 214) from “” to “,” payment of all unpaid leave and monies due, adding college credits and correspondence course to your service record, and documentation of Marine Non-Commissioned Officer (NCO) of the Quarter in your Service Record Book (SRB) with a new DD Form 214 stating you earned the this designation in June 1993. You make numerous allegations of error and injustice, including violations of the Administrative Procedures Act (APA) and the Privacy Act during the release of FOIA information. You also seek whistleblower protection for your communications with the Board. Furthermore, you ask that the Board take into consideration your contention that you had a disability based on occupational disease you incurred in-service. You also ask that the Board consider your exposure to traumatic and critical incidents, and chemical and biological hazards. You assert that the addition of a fifth year of service obligation to your four-year contract should be voided due to fraudulent enlistment because you claim you were subjected to duress and undue influence, and because you were denied due process. You allege that your recruiter unduly influenced you, you feared for your life and safety, and, if you had not signed the contract, you would have to have returned to the Drug War (crack epidemic) that had been destroying the lives of many of your friends and family. You assert that your general court-martial proceedings should be voided because the court lacked jurisdiction; you also note that a charge of stolen property was never filed. You further claim that, during the general court-martial proceedings you were deprived of fundamental rights, and procedural and substantive due process, and that your attorney provided ineffective assistance. You also assert that the performance of your trial and appellate counsel was deficient. You claim that the Board and Department of Veterans Affairs (VA) failed in their respective duty to assist you in obtaining exculpatory information and other medical evidence, and that a web application was used to make medical opinions despite FDA evidence. You also assert the Department of the Navy (DoN) failed to appropriately investigate your claims of obstruction of justice, fraud on the court, false statements, white supremacy, incompetence, unfair and inequitable treatment/double standards based on race, denial of due process, and devaluation of benefits/property interest. You cite FDA information dated 22 August 2018 regarding the use of ELAVIL, a medical opinion dated 21 November 2017, and a 7 November 2018 VA letter referencing “error in our duty to assist,” as well as all materials, documents, and enclosed records that were previously submitted but which you assert were not included in the record. You also ask that the continuing injustices in your case against other African-Americans be taken to consideration. You cite hazardous duty war neurosis from PTSD and provide historical citations. You also allege that the Board staff does not provide fundamental fairness, equal protection, and equal justice to correct the records of African-American/black applicants, which creates a disparate impact. You also ask that the impact of adenovirus, traumatic brain injury (TBI), and ELAVIL be considered. You request that the Board consider that the Marine who you assaulted had an affair with your spouse and that he was arrested on 1 August 1993. You also contend that the Board previously concurred with an advisory opinion that was fatally flawed, consisted of false statements, and intentionally omitted suppressed exculpatory and credible scientific evidence that provides without a reasonable doubt that ELAVIL caused adverse events, to include physical assault. You also allege that the previous Board, which convened on 30 November 2017, improperly used the criminal definition of insanity instead of the VA’s determination of insanity. You note that the only in-service request that was made to determine your mental competence was never completed during your time in the Marine Corps. You reference medical notes from 8 August 1989, in which your head trauma was documented; an earlier request for a Halstead-Reitan Neuropsychological battery was indicated in the August 1989 records. You also reference the VA post-discharge determination that you were insane at the time of your misconduct. Additionally, you contend that you had direct contact with numerous chemical substances to include trichloroethene (TCE), (PCE or PERC), PD680 and other volatile organic compound contamination through your duties as Ordnance Armament Weapons Support Equipment Technician and Hazardous Waste Coordinator at MCAS base housing. You assert you were subjected to cruel and unusual punishment with solitary confinement. You also argue that you were NCO of the Quarter, and that your award was removed illegally as pre-trial punishment; you contend that this removal was an unlawful deprivation of property by the court. You also believe that a meritorious promotion to E-5 is appropriate because you were illegally subjected to pretrial punishment; in the alternative, you argue that promotion to E-5 is an appropriate form of relief because your command omitted your college and military correspondence courses and you met the “cutting score” MOS 6541. For purposes of clarity and equitable consideration of your claims, the Board grouped your contentions and requests for relief as follows: (1) Whistleblower Protection claims, (2) allegations of violations of the APA, to include assertions that the Board and VA failed in their duty, and Privacy Act violations; (3) your exposures to hazardous chemicals and prescription medications, and resultant mental health conditions from your military service, and service-connected TBI, which allegedly impacted your conduct and resulted in judicial and disciplinary administrative actions; (4) your general court-martial proceedings, to include your allegations of lack of jurisdiction due to an unlawful contractual obligation for a fifth year of service, and cruel, unusual, and improper punishment; (5) your name change; (6) monetary relief, to include severance pay, unpaid leave, and monies due; (7) the addition of administrative information in your service record, to include college credits, correspondence courses, and NCO of the Quarter designation; and (8) your allegations of racial injustice and assertions that the DoN failed to properly investigate. (1) Whistleblower Protection. Federal whistleblower protection laws protect federal employee and military whistleblowers who report the possible existence of an activity constituting a violation of laws, rules, or regulations. Because you are not a federal employee or a current military member, the Board found that that federal whistleblower protection laws do not apply to you or to the communications made on your current DD Form 149. Moreover, the Board did not find evidence in your service record or information in your petition to substantiate that you filed a protected communication, that you were not afforded the appropriate protections resultant from such a filing, or that there was an error or injustice in your military record associated with such a filing. (2) The APA and the Privacy Act. With regard to the APA, the Board first noted that, under the regulatory guidance of SECNAVINST 5420.193 and the statutory authority of 10 U.S.C. §§ 1551 to 1556, the Board’s jurisdiction is limited to correcting errors in or removing injustices from the military records of current and former members. To the extent that you claim that the VA violated the APA or otherwise failed in its duty to you, the Board found it did not have jurisdiction to consider such claim. To the extent that you allege that the Board and its staff have acted in violation of the APA, the Board reviewed your previous requests and took into account your numerous allegations of error or injustice presented in your current petition. The Board reaffirmed its commitment to provide your current application for reconsideration an equitable review pursuant to the guidance of SECNAVINST 5420.193. The Board noted your claims of racial discrimination in the Board’s processing of your petitions. You also assert that the Board has abridged your constitutional rights, and that your fundamental rights have been violated, your right to fundamental fairness has been violated, you have been deprived of equal protection and equal justice, you have been subjected to obstruction of justice, fraud upon the court, Civil Racketeer Influenced Corrupt Organization (RICO) Act complaint, conspiracy to commit Civil RICO to include wire fraud and mail fraud, and arbitrary and capricious decision-making. The Board reviewed the available administrative record related to your 2016 petition and noted that the previous Board obtained two advisory opinions during the processing of your application. Both advisory opinions were unfavorable. The previous Board considered your 2016 submissions, the advisory opinions, both of which were provided to you, and your performance and your post-discharge achievements and complishments. The current Board did not find evidence of your numerous allegations of violations of laws, nor did it find an abridgement or deprivation of your rights by the previous Board. Furthermore, the Board found that your unsupported allegations of unfair and improper treatment and processing at the Board do not establish that there is a correctable error or injustice in your military record. Finally, the Board considered your claim that the Privacy Act was violated by the Board when you received the personal information of a fellow Service member along with information provided to you in response to your FOIA request. Your claim of spillage of protected personal information of another Service member has been forwarded to the appropriate point of contact within the DoN. The Board, however, found that your receipt of such information did not create an error or injustice in your record. (3) Exposure to Chemicals and Prescription Medications, and Mental Health Issues. In your current request, you assert that, during your military service, you were exposed to chemical and biological hazards, and were prescribed ELAVIL (Amitriptyline HCI). You also state that you suffered from service-connected PTSD and TBI. The Board considered your assertions that your exposure to such hazards and to the prescribed antidepressant had a mental impact on you and caused you to be “insane” as defined by the VA. You also indicate that the mental stress caused by discovering your wife’s infidelity with another Marine, combined with your mental conditions as caused by ELAVIL, your exposure to chemical and biological hazards, and PTSD and TBI, mitigated your misconduct and warrants corrective action to include removal of adverse information in your record, and that you be medically discharged or retired, and be awarded monetary compensation. Your request was fully and carefully considered by the Board in light of 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 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” memorandum of 25 August 2017. With regard to the mitigation of your misconduct, the Board found that, despite the post-discharge opinions of your providers and the VA, and the extensive information you provided about ELAVIL and its side effects, there is insufficient evidence to establish a nexus between your misconduct and your alleged exposure to chemical and biological hazards and/or ELAVIL. The Board noted that, during your time in the Marine Corps, even after your TBI and your ELAVIL prescription, you performed your military duties well, earning accolades and recognition from your command. Additionally, after your motor vehicle accident and after or during your alleged exposure to biological, chemical, and prescription hazards, you were medically screened on several occasions. Such screenings include one on 9 March 1993, when you were found medically qualified for deployment and 5 August 1993, when you received a pre-trial confinement physical that cleared you for confinement. The Board also noted that, on 20 June 1994, you were found medically qualified for discharge. The Board considered your service-connected disability rating and your post-discharge PTSD and TBI diagnosis,1 and took 1 The Board noted that your application includes a document reflecting approval of Combat-Related Special Compensation for “SOC MARCUS CAPONE USN RET”, VA% PTSD with Alcohol Abuse at 70%, TBI at 40%, Post Traumatic migraine headaches 30%. Your service record and information submitted by you regarding your name change does not reflect that you earned a Navy retirement in the paygrade of E-7. The Board considered the 2015 statement of , who opined that you were insane at the time of your misconduct resultant from TBI and PTSD from a motor vehicle accident, and the 2017 statement from , which states you were “not responsible for any behavior changes (that you) experienced in the past while prescribed the drug Elavil.” into consideration your ability to perform your military duties successfully. The Board found that the seriousness of your misconduct—as documented by your conviction at summary court-martial (assault on a Marine) and general court-martial (to include assault on a lance corporal by striking him on the head and various other parts of the body with a 9 mm pistol, thereby intentionally inflicting grievous bodily harm upon him, to wit, a lacerated wrist and fractured skull)—could not be overcome by your post-discharge mental health diagnoses. Furthermore, the Board considered your argument that you were not mentally competent at the time of your misconduct. The current Board, like the previous Board, did not find the 2015 medical opinion that you were insane to be persuasive. That opinion was based on findings that your behavior that led to your discharge was out of character for you and that your service records did not reflect deliberate or intentional disregard for consequences. The Board again noted that your January 1990 summary court-martial conviction for assault against another Marine directly contradicted the basis for the 2015 opinion. Therefore, without reliable evidence that you were not responsible for your misconduct, the Board felt it did not have a basis to grant relief in your case by removing the adverse information pertaining to either court-martial, or by changing the resultant administrative or punitive actions (paygrade loss, pay loss, etc.) or upgrading your current service characterization of BCD. With regard to your request for a medical discharge and/or medical retirement, the Board noted that, under SECNAVINST 1850.4 series, processing for punitive discharge and processing for administrative discharge for misconduct takes precedence over processing for disability. Even in consideration of your assertion that you are entitled to a medical discharge/medical retirement, the commission of misconduct that resulted in your 1993 general court-martial conviction and sentence of a BCD superseded any disability processing that you claim you should have received. The Board noted the previous Board’s findings that there was no indication that you were unfit for duty, as well as the guidance of SECNAVINST 1850.4 series and found that corrective action with respect to a medical discharge/medical retirement is not warranted. (4) Unlawful and Improper General Court-Martial Proceedings. You make numerous allegations pertaining to your court-martial proceedings, to include unlawful command influence, lack of jurisdiction due to an unlawful contractual obligation for a fifth year of service, ineffective assistance of counsel, and cruel, unusual, and improper pre-trial punishment. You first claim that the general court-martial did not have jurisdiction because you signed your contract for a fifth year of enlistment while under duress. The Board reviewed your assertions and allegations, but did not find evidence in your record or evidence in the information you submitted to support your claim of an unlawful contract. Furthermore, the Board noted your assertions of unlawful command influence and your claims regarding an inexperienced and ill-equipped counsel. The Board, however, found insufficient evidence to support your claims of unlawful command influence or ineffective assistance of counsel at either the trial or appellate level. The Board also considered your statement that you were insane at the time of your proceedings, but did not find evidence to support a finding that you were not fit to stand trial in 1993 during your general court-martial proceedings. The Board noted that medical notes from August 1989 indicate that you were recommended for a Halstead Reitan test, which was requested on 27 June 1989, but that you rescheduled and were then a “no show.” The Board also noted that, after August 1989, you continued to perform your military duties successfully, and did not have documentation of in-service competency issues. Finally, the Board considered that you assert you were subjected to cruel and unusual punishment with solitary confinement and that the court deprived you of the NCO of the Quarter award. The Board noted that you provided correspondences that you wrote while in pre-trial confinement that indicate you were confined alone. However, the Board found that the information you provided was insufficient to establish that you were subjected to cruel and unusual punishment during your pre-trial or post-trial confinement. Additionally, the Board determined that you did not provide evidence that the court overseeing your general court-martial proceedings removed your NCO of the Quarter award. The Board noted that the NCO of the Quarter award may have been issued at the command-level and may have been removed at the discretion of your chain of command rather than the court. Regardless, the Board did not find an error or injustice, or a deprivation of property by the court that warranted corrective action. The Board reviewed the totality of your claims regarding your court proceedings, and took into consideration that the general court-martial decision was subject to appellate review. The Board determined that your trial proceedings were fair and equitable and that your many assertions of legal error and injustice were not supported by the evidence reflected in either the record of trial or the information pertaining to appellate review of your case. The Board noted that you were discharged with a BCD on 16 April 1997, upon completion of appellate review. The Board found that the sentence of forfeiture of all pay and allowances, reduction to E-1, confinement for 18 months, and a BCD appears to have been executed after appropriate post-trial review and does not merit corrective action as a matter of clemency. (5) Name Change. The Board noted that you served in the Marine Corps under the name of . You have since changed your name legally to . The Board noted that it grants name changes in circumstances involving an injustice only. The Board determined that your legal name was at the time of your service in the Marine Corps, and that your service record properly reflects your legal name at that time. The Board determined that you have not provided sufficient evidence establishing an injustice with the use of your former legal name of on your discharge paperwork. Accordingly, the Board denied your request for a name change and a new DD Form 214. (6) Monetary Relief, to Include Severance Pay, Travel (Mileage Allowance/Transportation) Claims, Unpaid Leave, and Monies Due. With regard to severance pay, unpaid leave, and pay associated with your court-martial sentences, including loss of rank, the Board determined that, since corrective action on your BCD is not warranted, and because clemency is not appropriate, you are not entitled to severance pay, unpaid leave, or any other type of financial compensation or pay. With regard to your allegations of unpaid travel (mileage allowances/transportation) claims, the Board determined that you did not provide sufficient evidence to establish that you were entitled to reimbursement or payment for travel, and that you were wrongfully deprived of the financial compensation for such an entitlement. (7) Addition of Administrative Information in Your Service Record. The Board recommends that you submit your request for corrective action on educational and awards information to Headquarters Marine Corps. The Board did not consider your request as you do not appear to have exhausted your administrative remedies. (8) Allegations of Racial Injustice and Assertions that the DoN Failed to Properly Investigate Claims. The Board again noted the limitations of its jurisdiction as mandated by regulation and law, but considered your allegations of racial injustice as they pertained to your claims for corrective action to your record. The Board noted that you did not provide sufficient evidence to establish that you were subjected to discrimination while in the Navy or that racial discrimination directed at you resulted in an error or injustice in your service record. Absent such evidence, the Board found that corrective action is not warranted. Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to its 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. 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,