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 25 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 and personal statement, together with all material submitted in support thereof, relevant portions of your naval record, as well as applicable statutes, regulations, and policies. 
 
You originally enlisted in the Marine Corps on 29 July 1977 and at the expiration of your enlistment you received an honorable discharge on 18 September 1983.  However, during a subsequent enlistment, on 28 May 1986 you went to a General Court Martial (GCM) and pursuant to your guilty pleas, you were convicted of: (a) unlawful entry, and (b) assault consummated by a battery upon a female sailor.  You received as punishment eight (8) years of confinement, a reduction to the lowest enlisted paygrade (E-1), total forfeitures of pay, and a dishonorable discharge (DD) from the Marine Corps.  On 31 March 1987, the Naval Clemency and Parole Board denied you any relief and did not reduce your punishment.  Following completion of the post-trial appellate review process in your case, your punitive discharge was ordered executed, and you were discharged from the Marine Corps with a DD on 13 November 1987. 
 
Your contention that you suffered from a mental health condition and were mentally unstable at the time of your offenses were 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.” 
 
The Board carefully weighed all potentially mitigating factors, such your contentions that included, but were not limited to:  (a) you were coerced out of taking a pretrial agreement due to unlawful command influence (UCI), (b) you were mentally unstable at the time of your offenses, (c) that until your GCM you had never been in trouble in the Marine Corps, (d) you lost your ability to make sound decisions that night, (e) you have made every effort since you were incarcerated in to make a better man out of yourself and that you truly believe you can be a better person, (f) you owe an apology to that young female you assaulted that night, your unit, and to the Marine Corps, and (g) you appeal to this board humbly for mercy.  However, the Board determined these mitigating factors and contentions were not sufficient 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, even under the liberal consideration standard, the Board concluded that there was no credible and convincing evidence that you suffered from any type of mental health condition while on active duty, 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 observed that you did not submit any clinical documentation or post-service treatment records to support your mental health claim despite a request from Board on 22 August 2019 to specifically provide additional documentary material. 
 
Moreover, the Board found that at no time during your GCM did you establish by clear and convincing evidence that you were not mentally responsible at the time of your alleged offenses (as required by Rules for Courts-Martial 916(k)(1)-(3)).  Thus, the Board concluded that at all relevant times you possessed the requisite mental capacity and mental responsibility to stand trial, and that any such suggestion or argument to the contrary is without merit and not persuasive.  The Board also determined that there is no credible and convincing evidence in the record of any UCI, or that you were coerced out of signing a favorable pre-trial agreement that would have benefitted you in the sentencing portion of your GCM.  Accordingly, the Board determined that there was no probable material error or injustice in your conviction and discharge, and even under the liberal consideration standard, the Board concluded that your serious misconduct merited your receipt of a DD. 
 
The Board also noted that, although it cannot set aside a conviction, it might grant clemency in the form of changing a characterization of discharge, even one awarded by a court-martial.  However, the Board unanimously concluded that, despite your contentions, this is not a case warranting clemency.  During both your GCM trial and the GCM post-trial appellate review process, no substantive, evidentiary, or procedural defects were discovered with your conviction.  Had any actual defects existed including UCI, or if there was any evidence of coercion with your pre-trial agreement, or if your mental health issues rendered you mentally incompetent to stand trial or lacking the mental responsibility for your charged offenses, either the trial court or the appellate courts on review would have concluded as such and ordered the appropriate relief.   
 
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, such as positive or negative post-service conduct, including any arrests or convictions.  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.