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

Docket No: 331-19 
Ref: Signature Date 

Dear

This letter 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 that 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 20 February 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 received a commission as a Second Lieutenant in the Marine Corps on 11 August 2000. During your pre-commissioning physical, you noted on your medical history previous treatment for attention deficit disorder (ADD) in 1997.  Your military occupational specialty was a public affairs officer.
 
On 27 March 2004, you went to a General Court-Martial (GCM) for multiple charges arising from incidents that occurred while you were forward-deployed to Kuwait in April and May of 2003.  You were tried by military members and found not guilty of two charges and three specifications, but guilty of one charge and five specifications of violating Uniform Code of Military Justice Article 92.  Three specifications were for failing to obey a lawful order or regulation, one was for fraternization with an enlisted Marine, and one was for dereliction in the performance of your duties.  The dereliction of duty offense involved your failure to ensure your subordinate Marines maintained custody and control of their issued weapons and ammunition, and for allowing your subordinate Marines to leave such weapons and ammunition unsecured in the residence of a Kuwaiti national while you all attended a party at another location in Kuwait City.  You were sentenced to confinement for 30 days and issued a letter of reprimand. 

On 11 April 2004, the Commanding General, I Marine Expeditionary Force, notified you that you were required to show cause for retention at a Board of Inquiry (BOI). On 15 June 2004, the BOI was convened at Camp .  You were represented by counsel at the BOI.  The BOI panel unanimously found that you demonstrated substandard performance of duty, engaged in personal or professional conduct unbecoming of an officer, and recommended your separation from the Marine Corps with a general (under honorable conditions) (GEN) characterization of service.  Ultimately, on 2 December 2004, you were discharged from the Marine Corps with a GEN characterization of service.  The narrative reason for your separation on your DD Form 214 is “unacceptable conduct.” 

On 26 September 2018, the Naval Discharge Review Board (NDRB) determined that your discharge was proper as issued and no change is warranted.  The NDRB concluded that Military Sexual Trauma (MST) or post-traumatic stress disorder (PTSD) did not mitigate the misconduct for which you were found guilty at the GCM, and which served as the basis for your administrative separation.  The NDRB determined there was an insufficient nexus between your misconduct and your post-misconduct MST/PTSD, thus, the NDRB found that MST/PTSD did not mitigate the misconduct for which you were separated.  Because you never raised your pre­service attention deficit hyperactivity disorder (ADHD) or subsequent major depressive disorder (MDD) as possible causative and/or mitigating factors with the misconduct underlying your discharge, the NDRB did not address them. 

Your contention that you suffered from PTSD and MDD related to a sexual assault, as well as ADHD, 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 review process, a qualified military mental health provider (MHP) reviewed your request for correction and provided the Board an AO dated 14 August 2019.  The MHP determined that you have a PTSD and MDD diagnosis that can be attributed to MST and your overseas deployment.  The MHP noted that according to your discharge documents, you were convicted by GCM of misconduct that occurred the day before the MST.  Accordingly, the MHP determined that there was insufficient evidence to attribute your misconduct to MST.  The MHP did not address the possible effects/impacts of ADHD in formulating any opinions. 

The Board carefully weighed all potentially mitigating factors, such as your contentions that included, but were not limited to:  (a) that you were the victim of sequential traumas while on active duty that have left you with debilitating PTSD and disabling MDD, (b) that you never contended MST caused or contributed to the misconduct, but rather that the MST and the command’s failure to properly react and permit treatment for MST further compounded the emotional trauma of MST and exacerbated your developing PTSD, (c) that had your command given any consideration to the rape report and engaged a medical professional with rape expertise, your command would have learned of the contribution of your ADHD to the misconduct and would have learned how stress and traumatic experiences such as MST can aggravate ADHD, (d) that your ADHD and its well-documented symptoms were not addressed by the NDRB, and were also not considered by:  (i) the command when they sought a court-martial or when court-martial punishment was administered, and (ii) the Department of the Navy when you were separated with a GEN, (e) that given the nature of your trauma you were unable to effectively participate in your GCM defense, (f) that upgrading your discharge would go a long way in adding balance to your nightmares and recurrent reliving of the rape and subsequent traumas, (g) that ADHD is characterized by inattention, hyperactivity, impulsiveness, or a combination thereof, (h) that behavior symptomatic of ADHD is the inability to control engaging in impulsive and/or risky behavior without regard to what the result or consequences will be, and (i) that a discharge upgrade is warranted because ADHD was a mitigating factor in the misconduct leading to your separation.  However, the Board determined that these mitigating factors and contentions were insufficient 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, the Board concluded that there was insufficient evidence:  (a) to support a nexus between any ADHD and/or ADHD-related symptoms and your misconduct, (b) to support a nexus between any PTSD due to MST and/or PTSD-related symptoms and your misconduct, or (c) to support the argument that any such mental health conditions mitigated the misconduct that formed the basis of your discharge.  Even under the liberal consideration standard, the Board concluded that your misconduct was not due to ADHD, PTSD or PTSD/MST/ADHD-related symptoms.  Moreover, the Board determined that ADHD would not prevent you from understanding right from wrong or performing in the manner expected of commissioned officers.  To the extent you contend your ability to participate in your own defense at GCM was impaired, the record shows that you never asserted that issue at trial or on appeal and that you were represented by counsel at both your GCM and BOI.  It was the BOI, based on the lesser standard of a preponderance of the evidence, that found you had engaged in both conduct unbecoming of an officer (as evidenced by your GCM conviction), and had demonstrated substandard performance of your duties (by failing to demonstrate acceptable qualities of leadership required of an officer of your grade, and failing to properly discharge the duties expected of an officer of your grade and experience).  Thus, the Board found that significant negative aspects of your conduct and performance outweighed the positive aspects of your military record, and that your overall service is not otherwise so meritorious as to warrant a discharge upgrade.  Accordingly, the Board determined that there was no probable material error or injustice in your discharge, and concluded that your misconduct and demonstrated substandard performance of duties, both jointly and severally, support your receipt of a GEN characterization of service.
 
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, 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,