DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 2665-19 Ref: Signature Date This letter is in reference to your reconsideration request dated 28 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. A three-member panel of the Board, sitting in executive session, considered your application on 28 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, an Advisory Opinion (AO) from a Navy mental health provider, your AO rebuttal submission, 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 16 September 1996. From August 2000 through February 2001, you served in the Marine Security Guard (MSG) program in at the . . On 1 March 2001, you were relieved from the MSG program for the good of the service due to your diagnosis of psychological unsuitability. On 19 March 2001, you transferred , and served as a military policeman. On 29 January 2002, you reenlisted in the Marine Corps. On 5 June 2002, you went to non­judicial punishment (NJP) for failing to obey a lawful general order and for inappropriate conduct with a married female Marine. The orders violation was based on you disobeying a Military Protection Order (MPO) on divers occasions between 5–10 December 2001 that was issued by your commanding officer (CO). You did not appeal your punishment. Following the NJP, your command issued you a “Page 11” warning documenting your NJP and recommending corrective action. The MPO prohibited any and all contact with the married female Marine while she was still married. On 13 June 2002, you were placed in pre-trial confinement (PTC) for continuing to violate the MPO. Your CO deemed PTC necessary to prevent further misconduct. The Initial Review Officer (IRO) released you from PTC on 18 June 2002 as lesser forms of restraint were deemed adequate. On 30 September 2002, you were again placed in PTC for breaking your restraint order on several occasions. You also violated the CO’s MPO to remain away from potential witnesses in your court-martial. Following your signed pre-trial agreement to plead guilty to disobedience of a superior commissioned officer, your CO in exchange for your guilty plea agreed to change the forum of your pending court-martial to a Summary Court-Martial (SCM) in lieu of a Special Court-Martial (SPCM). Once the forum changed to a SCM, you were released from PTC. The very next day on 25 October 2002, you were convicted at a SCM of disobedience of a superior commissioned officer. As punishment you received forfeitures of pay, 45 days of restriction, and were reduced in rank to E-2. On 11 June 2003, contrary to your pleas, you were convicted at a SPCM of being disrespectful in deportment and language towards a superior non-commissioned officer in the execution of their duties and violating a lawful general order. As punishment you were sentenced to a discharge from the Marine Corps with a Bad Conduct Discharge (BCD). On 18 October 2006, the Navy-Marine Corps Court of Criminal Appeals (NMCCA) approved the findings and sentence as approved by the convening authority. On 19 June 2007, the U.S. Court of Appeals for the Armed Forces affirmed the NMCCA decision. Following completion of the post-trial appellate review process, you were discharged from the Marine Corps with a BCD on 22 August 2007. On 13 November 2008, the Naval Discharge Review Board (NDRB) as a matter of clemency upgraded your BCD to an “under other than honorable conditions” (OTH) characterization of service. The NDRB determined that your SPCM sentence was inequitable for the offenses you committed and did not warrant a BCD. On 23 January 2012, the Veterans Administration (VA) increased the disability rating for your service-connected ADHD (also claimed as depression and post-traumatic stress disorder (PTSD)) from 30% to 70%. On 12 September 2016, the NDRB determined that your OTH discharge was proper and that no further change was warranted. You contended, in part, that PTSD and traumatic brain injury (TBI) mitigated your misconduct. The NDRB determined that PTSD did not mitigate your misconduct and specifically stated: “…the record reflects willful and repetitious misconduct that demonstrated he was unfit for further service. The evidence of record did not show that PTSD or TBI was a sufficient mitigating factor to excuse the Applicant’s conduct or accountability concerning his actions…. TheApplicant’s violation[s]…and conviction at SPCM (while pending separation), were all conscious decisions to violate the tenants of honorable and faithful service…the Applicant’s perceived lack of protection afforded the victim does not mitigate him having an intimate relationship with her in violation of good order and disciple[ine] and the UCMJ.” In November 2018, the Board denied you relief. The Board, in its decisional document, stated that the misconduct forming the basis of your NJP, SCM, and SPCM were not the type of misconduct caused by PTSD or TBI. The Board also determined that your misconduct warranted the OTH characterization. Your contention that you suffered from PTSD and TBI 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 military mental health provider (MHP), reviewed your contentions and the available records, and provided the Board an AO dated 7 May 2020. The MHP noted that you submitted compelling evidence that you incurred PTSD and TBI as a result of your military service. The MHP also observed that in several of your post-discharge mental health evaluations, examiners opined the symptoms you experienced as a result of your PTSD and TBI contributed to your in-service misconduct through common PTSD symptoms. The MHP also determined that there was no evidence in the record indicating your mental state ever rendered you non-accountable or not responsible for your actions and behavior. The MHP concluded by opining that there is sufficient evidence to attribute your diagnosed PTSD and TBI to your military service, but that only some, and not all of your range of misconduct is attributable to PTSD and TBI given the varied nature of your misconduct behaviors. The Board carefully weighed all potentially mitigating factors, such your contentions that included, but were not limited to: (a) your discharge is erroneous, inappropriate, improper, unjust, and inequitable given recent alterations in military policy concerning assessment of and consideration related to mental, behavioral, and neurological aspects impacting service-members, (b) other matters of extenuation and mitigation (i.e., intimate partner violence, court-martial errors, etc.) were not previously considered by the Board, (c) all requested relief should be granted, minimally in partial form, on the basis of clemency, based on in-service voluntary appellate leave and post-service conduct, as evidenced by employment history, the lack of a civilian criminal record, and acquisition of multiple university degrees, if for nothing else, (d) it is undisputed that you suffered from childhood PTSD that was aggravated by numerous traumatic experiences during service, (e) several medical professionals, including the VA diagnosed you with PTSD aggravated by service, (f) a neurological examination indicated that you experienced impairment of judgment, (g) the VA indicated that you have significant occupational and social impairment due to your service-connected disabilities, to include PTSD and TBI, (h) the AO is factually and medically incorrect, and (i) that PTSD and TBI were causative factors in your misconduct. Unfortunately, the Board determined your mitigating factors and contentions were not sufficient to warrant upgrading your discharge, removing any NJP and corresponding derogatory material, setting aside your SPCM conviction, making any remedial changes to your DD Form 214, 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. The Board did initially note that the AO and medical evidence suggested that some of your misconduct is attributable to your mental health conditions. However, even under the liberal consideration standard, the Board concluded that the severity of your misconduct far outweighed any and all mitigation offered by your mental health conditions, whether it was PTSD, TBI, and/or their related symptoms including, but not limited to: occupational/social impairment, impaired judgment, neurological impairment, and/or impaired impulse control. The Board was also not willing to set aside your NJP or SPCM conviction. Your SPCM conviction was reviewed by two military appellate courts and found to be legally and factually sufficient. There is also no evidence in the record to indicate that your NJP findings were erroneous. Additionally, the Board determined that, in fairness to those Marines who serve honorably and without incident, Marines should receive no higher discharge characterization than is due and the Board likewise did not set the NJP aside. The Board also believed that, even though flawless service is not required for an honorable or general discharge, in this case an OTH discharge is appropriate even after taking into account any mitigation from your diagnosed mental health conditions. Further, the Board unequivocally determined that your misconduct constituted a significant departure from the conduct expected of a Marine. Moreover, even if the Board reviewed your case without taking into account your SPCM conviction, the pattern of misconduct underlying your NJP and SCM alone would still justify an OTH discharge. Accordingly, the Board determined that there was no probable material error or injustice in your OTH discharge, and even under the liberal consideration standard, the Board concluded that your separation and characterization were proper and in compliance with all Navy directives and policy at the time of your 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 pattern of 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. Following the NDRB’s discharge upgrade in 2008, you have now attempted on three separate occasions to further upgrade your discharge without relief. Unfortunately at this time, 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.