Docket No: 3140-19 
Ref: Signature Date 


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 18 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, applicable statutes, regulations, and policies, and an advisory opinion (AO) dated 3 May 2020. 

You enlisted in the Marine Corps on 14 September 1998. On 17 December 1999, you received nonjudicial punishment (NJP) for wrongful use of marijuana and an unauthorized absence (UA) of two hours and 15 minutes.  Also on 17 December 1999, you were counseled that additional misconduct could result in administrative separation or judicial proceedings. On 20 December 1999, you were evaluated by Naval Hospital and diagnosed with “Drug Abuse (Isolated Incident).” Subsequently, you were notified of pending administrative separation action by reason of misconduct due to drug abuse.  After you waived your procedural rights, your commanding officer (CO) recommended separation with an other than honorable (OTH) characterization of service by reason of misconduct due to drug abuse.  After the staff judge advocate deemed the separation as sufficient in law and fact, on 13 March 2000, the discharge authority directed that you be discharged with an OTH characterization of service but that your discharge be suspended for a period of 12 months.  The following day, you began a period of UA which ended when you were apprehended on 11 July 2000. You were convicted by special court-martial (SPCM) on 4 August 2000 for the extended UA.  The SPCM adjudged a bad conduct discharge (BCD), confinement, forfeiture, and reduction in rank.  The BCD was subsequently approved at all levels of review, and, on 29 November 2001, you were discharged. 

Your request for an upgrade to your characterization of service was reviewed in consideration of your contention you suffered from post-traumatic stress disorder (PTSD).  Your request 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, “ClarifyingGuidance 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.” 

As part of the Board’s review, a Navy mental health professional reviewed your request and provided the Board with an AO on 3 May 2020.  The AO noted you did not submit evidence describing in-service trauma or that you exhibited any mental health symptoms or conditions, other than substance abuse, during military service.  The AO also noted you did not submit any medical evidence of a post-discharge mental health condition as rendered by a mental health practitioner.  The AO concludes there is insufficient evidence of a mental health condition attributable to your military service that may have mitigated your misconduct.  The AO was provided to you on 12 May 2020, and you were given 30 days in which to submit a response.  When you did not provide a response, your case was submitted to the Board for consideration. 

The Board carefully reviewed your application, weighed all potentially mitigating factors, and considered your contention your “BCD was a result of trauma experienced in boot camp.”  The Board considered your contention that boot camp left you “nervous all the time, jumpy, afraid, and often depressed.”  The Board further considered your contention that you were “afraid to tell anyone out of fear of being called a weakling or crybaby” so you “held everything in and dealt with this sickness by using marijuana” because it was the only thing that would calm the PTSD symptoms.  The Board noted that immediately following the discharge authority’s decision to suspend your administrative separation, you started a period of UA.  You contend the UA was 
because you could “no longer cope with the fact that Iwas a failure to myself, my family, my country.  I felt unwanted, unneeded and useless.” Lastly, the Board considered your contention that you have been “trouble and crime-free” for over ten years, attained an associate’s degree, and behaved as a “law-abiding citizen.” The Board, however, concurred with the AO and determined there is insufficient evidence to support a finding that PTSD or a mental health condition contributed to or mitigated your misconduct.  The Board did not find evidence of an error or injustice that warrants changing your BCD, nor did it find that clemency was warranted given the severity of your drug-related misconduct and repetitive nature of your misconduct despite being shown leniency by the discharge authority. 

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. 

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