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 for Correction of Naval Records, sitting in executive session, considered your application on 28 August 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 enlisted in Marine Corps on 23 June 2003.  Between 18 February 2004 and 27 August 2004, you participated in           .  On 23 May 2007 you received non-judicial punishment for disorderly conduct.  On 24 May 2007 you were issued a “Page 11” counseling warning (Page 11) documenting your NJP.  The Page 11 warned you that further misconduct could result in administrative discharge action.   
 
On 8 September 2013, you were relieved from your recruiting responsibilities for the good of the service due to your diagnosed adjustment disorder, anxiety, and depression.  On 13 September you received a Page 11 warning documenting your assignment to the Marine Corps Body Composition Program for not meeting established weight/body composition standards.  On 28 October 2013 you received a Page 11 warning concerning your demonstrated trend of substandard performance for the three-month period ending on 28 October 2013.   
 
On 12 December 2013 you were charged by civilian authorities in  with false imprisonment, assault in the third degree, criminal mischief, and harassment arising from a domestic violence incident.  You were convicted of harassment and third degree misdemeanor.  On 18 December 2013 you were notified of administrative separation proceedings by reason of misconduct due to the commission of a serious offense and alcohol abuse rehabilitation failure.  You consulted with counsel and elected to request a hearing before an administrative separation board (    Board).   
 
On 14 January 2014 an Adsep Board convened in your case, and at the Adsep Board you were represented by a Marine Corps Judge Advocate.  Following the presentation of evidence and witness testimony, the     Board members unanimously determined that you the committed misconduct as charged.  Subsequent to the unanimous misconduct finding, the    Board members recommended that you be separated from the Marine Corps with an other than honorable (OTH) characterization of service.  Ultimately, on 31 January 2014 you were discharged from the Marine Corps with an OTH and assigned an RE-4 reentry code.  Your narrative reason for discharge stated, “Misconduct (Serious Offense).”  In this regard, you were assigned the correct narrative reason and reentry code based on your factual situation. 
 
On 23 March 2015 the Naval Discharge Review Board determined that your discharge was proper as issued and that no change was warranted.  On 28 June 2016 the Board denied your initial petition for relief.  Upon reconsideration, on 25 July 2017 the Board upgraded your discharge to a general (under honorable conditions) (GEN) characterization of service.  The Board determined that your mental health conditions mitigated the misconduct underlying your discharge and characterization.  The Board, however, did not grant any additional remedial relief or make any other changes to your DD Form 214. 
  
Your contention that you suffered from a mental health condition on active duty was fully and carefully considered by the Board in light of the guidance provided by the Secretary of Defense’s Memorandum, “Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requested by Veterans Claiming Post Traumatic Stress Disorder” of  3 September 2014, and the "Clarifying Guidance to Military Discharge Review Board 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" memorandum of 25 August 2017.  
 
A qualified mental health provider (MHP) also reviewed your request for correction and provided the Board an advisory opinion dated 22 July 2020.  The MHP observed that your in-service records provided direct evidence of deployment to combat operations and mental health diagnoses post-deployment of PTSD, depression, alcohol abuse, and adjustment disorder, which were clarified near the end of service to anxiety disorder (NOS), adjustment disorder with mixed emotions and disturbance of conduct, and personality disorder, NOS (borderline and anti-social traits).  The MHP concluded by opining that there was sufficient evidence that you likely suffered from PTSD and possibly a traumatic brain injury 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:  that you served your country honorably and PTSD was a factor in your decision making, and that the military ignored your PTSD symptoms.  However, the Board concluded these mitigating factors and contentions were not sufficient to warrant restoring your rank, changing your reentry code or narrative reason, or granting any other relief.   
 
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.  The Board believed that your 2017 discharge upgrade was the appropriate course of action given your mental health conditions.  However, the Board determined that the domestic violence misconduct underlying your discharge clearly met the criterion for a serious offense.  Thus, the Board concluded that your administrative separation for misconduct due to the commission of a serious offense was correct and that no error exists with your narrative reason for separation.  Further, the Board determined that your mental health issues were of sufficient severity that they rendered you unsuitable for continued military service and warranted an RE-4 reentry code when coupled with your domestic violence conviction.  Lastly, the Board concluded that your rank should not be restored given the serious nature of your misconduct, and that there is no evidence in the record regarding any lack of mental capacity.  Accordingly, even under the liberal consideration standard, the Board concluded that you received the correct narrative reason and reentry code along with an appropriate reduction in rank, and that such actions were in accordance with all Department of the Navy directives and policy at the time of your discharge. 
 
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 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,