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 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, 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 the Marine Corps on 22 June 1981.  On your enlistment physical and medical history, no psychiatric or neurologic abnormalities and/or symptoms are noted.  On 5 November 1981 you received non-judicial punishment (NJP) for unauthorized absence (UA).  On 10 December 1981 you received a “Page 11” counseling warning (Page 11) documenting a failure to secure your wall locker, having another Marine’s gear in your locker and frequently lying to your superiors.  The Page 11 expressly warned you that a failure to take corrective action may result in disciplinary or administrative action.  On 22 December 1981 you commenced another UA due to a period of civilian confinement.  Following your release from civilian confinement, on 11 March 1982 you received NJP for making a false official statement, wrongful appropriation, and for UA corresponding to your days spent in civilian confinement.  On 25 May 1982 you were issued a Page 11 documenting your unsatisfactory performance of assigned duties and your lackadaisical attitude toward military rules and regulations.  The Page 11 warned you that a failure to take corrective action may result in processing for administrative separation.  On 24 June 1982 received to NJP for the violation of a lawful order.  One 26 August 1982 you received NJP for two specifications of violating a lawful order.  You were issued another Page 11 documenting your NJP and warning you that further infractions would result in processing for administrative separation.  However, on 12 October 1982 pursuant to your guilty pleas, you were convicted at a Summary Court-Martial of two specifications each of both willful dereliction of duty and misbehavior of a sentinel or lookout. 
 
On 19 October 1982 you were provided notice that you were being administratively processed for separation from the Marine Corps by reason of misconduct due to frequent involvement of a discreditable nature with military authorities.  You elected your right to consult with counsel, but waived your right to have your case considered by an administrative separation board.  On 19 November 1982 the Staff Judge Advocate for the separation authority determined that your administrative separation was legally and factually sufficient.  Ultimately, on 3 December 1982 you were discharged from the Marine Corps for a pattern of misconduct with an other than honorable conditions (OTH) characterization of service and assigned an RE-4 reentry code.   
 
Your contention that you suffered from mental health conditions 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.  
 
As part of the Board review process, the Board’s 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 6 August 2020.  The MD determined that the evidence did not support your contention that your misconduct was the result of any mental health conditions.  The MD stated that this was due to a preponderance of objective supportive evidence that during your military service, you were diagnosed with alcohol abuse and personality disorder without any evidence that you were not responsible for your actions.  The MD also noted that there were no clinical signs or subjective complaints indicating any other diagnosable mental health conditions, and that you did not indicate you were experiencing any mental health symptoms or conditions during your in-service military disciplinary processes or during your administrative separation processing.  The MD concluded by opining that there was insufficient evidence available:  (a) to demonstrate that your post-discharge mental health diagnoses were service-connected, or (b) to attribute your misconduct to any such mental health conditions. 
 
The Board carefully weighed all potentially mitigating factors, such as your contentions that included, but were not limited to:  (a) you have some mental health issues that you are seeking professional help for and would like to seek treatment through the VA Healthcare system, (b) your character of service is a bar to you receiving the treatment that you need, (c) you are asking for an upgrade to allow you to use the excellent services of the VA healthcare system, (d) during your military service you were young and foolish and at that time you could not see the errors of your ways and today are suffering the consequences of those foolish mistakes, (e) you are hoping  that the Board can show some compassion for a man who made some mistakes and missteps in his young adult life and now has the maturity to see the error of his ways and the strength and humility to stand before the Board and ask for an upgrade, and (f) you are a firm believer in second chances and are hoping that the Board grants you a second chance and upgrade your discharge because it would open up an entire new world of possibilities for you.  Unfortunately, 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 convincing evidence that you suffered from any type of mental health conditions while on active duty, or that any such mental health conditions were related to or mitigated the misconduct that formed the basis of your discharge.  As a result, the Board concluded that your pattern of misconduct was not due to any mental health conditions or their related symptoms.   
 
Further, the Board noted the record shows you were notified of and waived your procedural rights in connection with your administrative separation.  The Board also noted that there is no provision of federal law or in Navy/Marine Corps regulations that allows for a discharge to be automatically upgraded after a specified period of time.  Lastly, 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.  Accordingly, the Board determined that there was no impropriety or inequity in your discharge, and even under the liberal consideration standard, the Board concluded that your misconduct spanning the majority of your enlistment merited your receipt of an OTH 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 and your pattern of serious misconduct, 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,