Docket No: 4300-19 Ref: Signature Date Dear This letter is in reference to your reconsideration request dated 18 Apr 2019. You previously petitioned the Board for Correction of Naval Records (Board) and were advised that your application had been disapproved. Your case was reconsidered in accordance with Board procedures that conform to Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004). After careful and conscientious consideration of the entire record, the 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 Board for Correction of Naval Records (Board), sitting in executive session, considered your application on 30 September 2019. 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. You enlisted in the Marine Corps and began a period of active duty on 30 August 1974. You served without disciplinary incident for over a year. On 5 December 1975, you received nonjudicial punishment (NJP) for two one-day periods of unauthorized absence (UA). On 30 March 1976, you submitted a request for an other than honorable discharge in lieu of trial by court martial for three periods of UA, two specifications of disrespect toward a non-commissioned officer, one specification of disrespect to a commissioned officer and disobedience. The Command Staff Judge Advocate (SJA) reviewed the request and found it to be sufficient in law and fact, but recommended that it be denied and that your case be referred to court martial. On 4 June 1976, you were found guilty at special court martial (SPCM) proceedings of seven days of UA, failing to be at your appointed place of duty, disrespect and disobeying a lawful order. On 4 August 1976, and again on 14 March 1977, you were found guilty at NJP for UA. In April 1977, you were in an automobile accident; you suffered a head injury and required hospitalization. On 11 August 1977, you began a period of UA which terminated on 27 April 1978. After your return to military control, you consulted with counsel and submitted a request for an other than honorable discharge in lieu of trial by court martial. On 25 June 1978, you were discharged from the Marine Corps, and received an other than honorable characterization of service and a reentry (RE) code of RE-4. In your previous request for correction, you ask the Board to consider that you were involved in serious vehicle accident and suffered a traumatic brain injury (TBI). An Advisory Opinion (AO) was issued regarding your request and you were provided a copy of that opinion. The AO reviewed your assertions of suffering from a TBI due to an automobile accident but noted that your misconduct began to manifest prior to an automobile accident as evidenced by your SPCM conviction. The previous board denied your request and found that corrective action was not warranted. In your current request, you seek a medical disability/retirement from the Marine Corps and ask in part that your TBI be taken into consideration. You also make numerous assertions of legal and administrative error, and claims of injustice. You claims include the following: that you should not have been held beyond your term of enlistment; that your extensive period of UA should not be counted as absence without leave due to your TBI; your period of UA was mitigated because those days were after the expiration of your enlistment contract; that your state of mind mitigated your misconduct; that your transport order did not properly inform you of your responsibility to return to base; that there were clerical errors on the transport order that pertained to your address and social security number; that it took nearly a year to find you during your period of extensive absence; that you suffered from a sexually transmitted disease during your military duty; and that you were exposed to contaminated water at Camp Lejeune. You also provide letters of support from various family members that note your change in personality after your time in the military and comment on your difficulties after your discharge. Your spouse also provided a statement commenting on your post-service challenges such as speech disabilities, memory loss, mood swings, and the lack of ability to control your anger. The Board carefully reviewed your application, the information you submitted in support of your request, and your available service record. First, the Board considered your periods of UA and found that you extended your enlistment contract with your period of absence, and that you were not unlawfully retained on active duty. Second, the Board reviewed the previous Board’s decision and again found that your misconduct was not mitigated by your mental health conditions, to include TBI. The Board reviewed your contentions of exposure to contaminated water and your claim of the impact of a sexually transmitted disease on your mental state, but found that you did not provide sufficient evidence to establish a nexus between your misconduct and your claims. The Board found that despite your claims of numerous clerical errors and failure of the Marine Corps to return you to military control, that your misconduct as evidenced by your SPCM conviction and your subsequent period of UA from August 1977 to April 1978 supported your other than honorable characterization of service. The Board considered that pursuant to SECNAVINST 1850.4 series, in cases where the service member is undergoing disciplinary or administrative discharge proceedings pertaining to misconduct, a disability separation is superseded. The Board found that your misconduct of extensive UA from August 1977 through April 1978 superseded your claim to a disability determination or a medical retirement. The Board found that your current other than honorable discharge characterization is supported by the misconduct reflected in your record and that your request does not merit corrective action. It is regretted that the circumstances of your reconsideration petition 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 the absence of new matters for reconsideration, the decision of the Board is final, and your only recourse would be to seek relief, at no cost to the Board, from a court of appropriate jurisdiction. 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.