Docket No:  3757-19 
Ref: Signature Date 
 

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.     
  
A three-member panel of the BCNR, sitting in executive session, considered your application on 14 September 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 and applicable statutes, regulations and policies.  In addition, the Board considered the advisory opinion (AO) furnished by a qualified mental health professional dated 7 June 2020, which was previously provided to you. 
  
You enlisted in the Marine Corps and began a period of active duty on 7 December 1988.  On 11 October 1989, you requested separation in lieu of court-martial for two periods of unauthorized absence (UA) totaling 150 days.  You submitted a written request for an undesirable discharge for the good of the service in order to avoid trial by court-martial for 150 days of (UA).  Prior to submitting this request for discharge, you conferred with a qualified military lawyer, were advised of your rights, and warned of the probable adverse consequences of accepting such a discharge.  Subsequently, your request for discharge was granted and on 16 November 1989, you received an other than honorable discharge in lieu of trial by court-martial.  As a result of this action, you were spared the stigma of a court-martial conviction and the potential penalties of a punitive discharge and confinement at hard labor.  
  
You have requested an upgrade of your characterization of service on the basis that you suffered from a mental health condition during your military service.  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.” 
 
A qualified mental health professional further reviewed your request for correction to your record and provided the Board with an AO regarding your assertion that you were suffering from a mental health condition.  As detailed in the AO, the mental health professional noted that you did not provide further personal statements, clinical records, or other evidence to support your petition, and opined that there is insufficient evidence of a mental health condition attributable to your military service that may have mitigated your misconduct.  
  
The Board carefully weighed all potentially mitigating factors, such as your prior honorable service, and your contention that you need a medical evaluation and desire to upgrade your discharge.  The Board also considered your assertions that you went home to be a caregiver for your great grandmother.  The Board concluded that these factors and assertions were not sufficient to warrant recharacterization of your discharge given the misconduct reflected in your record, which resulted in the referral of charges to a court-martial for lengthy periods of UA and your request for discharge.  Further, the Board concurred with the AO’s statement that, there is insufficient evidence of a mental health condition attributable to your military service that may have mitigated your misconduct.  
  
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 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,