DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 3368-19 Ref: Signature Date This is in reference to your application of 19 February 2019 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 7 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, relevant portions of your naval record, and applicable statutes, regulations, and policies. The Board also considered the enclosed 27 March 2020 advisory opinion (AO) furnished by a Navy mental health professional and your rebuttal response dated 6 April 2020. Regarding your request for a personal appearance, the Board determined a personal appearance with or without counsel will not materially add to their understanding of the issues involved. Therefore, the Board determined a personal appearance was not necessary and considered your case based on the evidence of record. You enlisted in the Marine Corps and began a period of active duty on 2 February 1976. You received non-judicial punishment (NJP) on 27 September 1977 for an unauthorized absence (UA) from 5 July 1977 to 15 September 1977. On 10 December 1977, you received a second NJP for being UA from your appointed place of duty in the dining facility and three additional instances of UA totaling five days. On 24 April 1978, you were convicted by summary court-martial (SCM) for three periods of UA totaling 13 days. On 24 May 1979, you were convicted by special court-martial (SPCM) for two periods of UA from 6 March 1979 to 9 April 1979 and 23 April 1979 to 24 April 1979. On 25 June 1979, you began a period of UA which lasted until 13 December 1979, a total of 171 days. You began a second period of UA on 17 December 1979 which ended on 28 December 1979. On 28 February 1980, you submitted a written request for discharge under conditions other than honorable for the good of the service. Prior to submitting this request, you conferred with a military lawyer, at which time you would have been advised of your rights and warned of the probable adverse consequences of accepting such a discharge. Your request was granted, and your Commanding Officer was directed to issue an other than honorable (OTH) discharge for the good of the service. As a result of this action, you were spared the stigma of a court-martial conviction, as well as the potential penalties of such a punitive discharge. On 25 March 1980, you were discharged. Your request for an upgrade to your characterization of service was reviewed in consideration of your contention that you suffered from mental health issues while in-service, including extreme anxiety disorder, attention deficit hyperactive disorder (ADHD), and depression. 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, “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 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 mental health provider reviewed your request and provided the Board an AO on 27 March 2020. The AO determined it was “as likely as not” that you incurred a mental health condition during military service but further determined there was insufficient evidence that your in-service misconduct could be attributed to a mental health condition. The AO was provided to you on 30 March 2020. Your rebuttal response dated 6 April 2020 was submitted to the Board for consideration. The Board carefully reviewed your application, weighed all potentially mitigating factors, and considered your contention that you were suffering from mental health issues, including extreme anxiety disorder, ADHD, and depression, at the time of your misconduct. The Board further considered your contention that although you were not diagnosed in-service, your subsequent diagnosis and evidence supports the conclusion that you suffered from these conditions during service. The Board also considered your contention that your mental health issues excused or mitigated your misconduct which led to discharge and significantly outweighed your discharge. Lastly, the Board considered your post-service record which you contend is deserving of an honorable characterization of service. Specifically, the Board considered your contention that you have maintained gainful employment, sought treatment for your medical conditions, “been mostly sober” since your first treatment, and actively participated with , an organization dedicated to preserving the memory of those who have died in service to our nation. Additionally, the Board considered your contention that you have conducted yourself “admirably” despite your ongoing struggles. The Board, applying liberal consideration, concurred with the AO and concluded there was insufficient evidence to attribute your multiple, lengthy, and repeated UA periods to a mental health condition. The Board, noting the escalation from NJP to SCM to SPCM and the more than 180 days of UA following your SPCM which ultimately led to your discharge, did not find evidence of an error or injustice that warrants upgrading your characterization of service or changing your narrative reason for separation, separation code, or reentry code. Even noting your post-service record, the Board found your extended and repeated UA periods warranted your OTH characterization of service. 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, 6/3/2020