Dear : 
 
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 10 July 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, 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 Reserve (USMCR), and you began a period of active duty on 22 February 1999, and were honorably discharged at the completion of your initial recruit training and required active service on 29 September 1999.  Upon your discharge, you were assigned to a reserve unit located in .  In January 2003, you mobilized and served on active duty in support of Operation Enduring Freedom (OEF), and you served nearly five months in an imminent danger zone.  At the end of your OEF mobilization, you received an honorable discharge on 8 August 2003 and were recommended for reenlistment. 
 
You had previously signed an acknowledgement entitled, “Statement of Understanding Upon Enlistment in the Marine Corps Reserve” (SOU), regarding the satisfactory participation requirements with the USMCR.  Such SOU stated that satisfactory participation in the USMCR consisted of the performance of forty-eight scheduled weekend drills and not less than fourteen days of active duty for training during each year of your contract.  You expressly acknowledged that you were required to attend drills and training periods, and that your failure to attend drills and training periods could result in a less than honorable discharge.  However, between November 2003 and February 2004, you failed to attend scheduled reserve drills and accumulated enough unexcused absences to deem you an unsatisfactory participant in the USMCR.  Your unexcused drill absences were documented by your unit using “Page 11” administrative entries in your service record. 
 
Your command notified you that you were being processed for an administrative discharge by reason of unsatisfactory participation in the USMCR for excessive unexcused absences.  On 17 August 2004, the Commanding General,  approved and directed your administrative separation with an “under other than honorable conditions” (OTH) characterization of service, and assigned you an RE-4 reentry code.  Ultimately, on 18 August 2004 you were discharged from the USMCR with an OTH characterization of service. 
 
Your contention that you suffered from a mental health condition while in the Marine Corps 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 Requests 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 process, the Board Physician Advisor, who is a medical doctor and Fellow of the American Psychiatric Association (MD), reviewed your contentions and the available records and issued an AO dated 28 May 2020.  The MD noted that your in-service records failed to reveal any evidence of service-connected mental health symptoms or conditions.  The MD also noted that you submitted no evidence that you exhibited any mental health symptoms or conditions during your military service or post-service.  The MD concluded by opining that there was insufficient evidence available to demonstrate a service-connected mental health condition that may have mitigated your misconduct. 
 
The Board carefully weighed all potentially mitigating factors, such as your contentions that included, but were not limited to:  (a) when you returned back to the USMCR (after your OEF deployment), it was a tough readjustment to civilian life and responsibilities, (b) you struggled with the balance of going right back to full-time school and work, (c) no services were being offered by the  in terms of dealing with the war-time experience or any re-adjustment issues so you were ill-equipped to adjust from war to civilian responsibilities, (d) you are extremely proud of your wartime service, but because of your discharge characterization, you have not been able to celebrate your service with other service men or receive any benefits, and (e) your honorable service during a wartime active duty deployment would hopefully garner favorable consideration of your application.  Unfortunately, the Board determined these mitigating factors and contentions were not sufficient to warrant upgrading your discharge characterization 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, even under the liberal consideration standard, the Board concluded that there was no evidence that you suffered from any type of service-connected mental health-related condition, or that any such mental health condition was related to or mitigated the misconduct that formed the basis of your discharge.  As a result, the Board concluded that your misconduct was not due to mental health-related symptoms.  Moreover, the Board noted that you did not submit any clinical documentation or treatment records to support your mental health claims despite a request from Board on 31 July 2019 to specifically provide additional documentary material.  Moreover, absent a material error or injustice, the Board generally will not summarily upgrade a discharge solely for the purpose of facilitating VA benefits, or enhancing educational or employment opportunities.  The Board also observed that you signed an SOU prior to affiliating with the USMCR.  The SOU clearly outlined the annual requirements for your satisfactory participation in the USMCR.  The Board also noted that no evidence exists in the record that you ever made up any missed drills.  The simple fact remains that you failed to attend required scheduled drills and you were absent without legal authority, justification, or excuse.  Accordingly, the Board determined that there was no probable material error or injustice in your discharge, and concluded that your misconduct involving shirking your USMCR responsibilities merited your OTH discharge and RE-4 reentry code. 
 
Additionally, the Board reviewed your application under the 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,