Docket No: 4788-19
Ref: Signature Date              
           
MR 


Dear Mr.  
 
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, and applicable statutes, regulations, policies, as well as the Advisory Opinion (AO) provided by a mental health provider.   
 
Regarding your request for a personal appearance, the Board determined a personal appearance with or without counsel will not materially add to their understanding of the issues involved.  Therefore, the Board determined a personal appearance was not necessary and considered your case based on the evidence of record. 
 
You enlisted in the Marine Corps on 1 March 1989.  On 1 November 1991, you were formally counseled regarding substandard performance because you failed to deliver sensitive documents when directed to do so.  On 4 December 1991, you received nonjudicial punishment (NJP) for an unauthorized absence (UA) from 2 November 1991 to 30 November 1991.  On 6 December 1991, you were again counseled for your poor attitude and lackluster performance.  On 31 March 1992, you were convicted by special court-martial for an UA from 7 December 1991 to 13 January 1992 and failure to go at the time prescribed to your appointed place of duty.  You were sentenced to confinement, forfeiture of pay, and reduction in rank.  On 20 May 1992, you received a third NJP for being disrespectful in language and gestures to a staff sergeant in the execution of his duties, disobeying a lawful order to turn down your music, and violating an order which requires all stereos/televisions, radios be kept at a minimal level during the hours of 2200-0530.  Your record is incomplete in that it does not contain all the documents pertaining to your administrative discharge but, based on your Certificate of Release or Discharge from Active Duty (DD Form 214), it appears that after you waived your procedural rights, the separation authority directed discharge with an other than honorable (OTH) characterization of service by reason of misconduct due to pattern of misconduct.  On 21 July 1992, you received an OTH discharge. 
 
Your request for a change to your characterization of service was reviewed in consideration of your contention you were suffering from mental health issues, including depression and alcohol abuse, at the time of your discharge.  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,” of 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.” 
 
As part of the Board’s review, a qualified mental health professional reviewed your request and provided the Board with an AO on 16 August 2020.  The AO stated that your in-service records do not contain evidence you suffered from any mental health symptoms or conditions during military service.  The AO further states that you submitted evidence of a post-discharge diagnoses of depression and anxiety but additional evidence, such as medical records containing a diagnosis of a mental health condition associated with your military service and linked to your military misconduct is required to render an alternate opinion.  Based on the available evidence, the AO concluded there is insufficient evidence of a mental health condition attributable to your military service that may have mitigated your misconduct.  The AO was provided to you on 17 August 2020, and you were given 30 days in which to submit a response.  When you did not provide a response, your case was submitted to the Board for consideration. 
 
The Board carefully reviewed your application, weighed all potentially mitigating factors, and considered your contention that you were suffering from mental health issues, including depression and alcohol abuse, at the time of your discharge.  Specifically, you contend that you tried unsuccessfully to reconcile your marriage and your wife’s refusal to allow you to see your daughter led to severe depression and alcohol abuse.  You further contend that “despite being drunk or hung over constantly,” you were never counseled or offered counseling for the depression or alcohol abuse.  Additionally, you contend your command’s refusal to approve the use of your vacation time to reconcile your marriage led to your first UA period, and the second UA was the result of your wife’s threat to divorce you and take your daughter if you didn’t visit them.  Further, while you were in the brig serving your SPCM sentence, you contend you were served divorce papers which sent you deeper into depression, resulted in extensive alcohol abuse, which led to the episode of disrespect to the staff sergeant.  The Board also considered your contention that although you were not diagnosed with these conditions while on active duty, the evidence demonstrates that you suffered from these conditions while in-service and these conditions directly contributed to the misconduct that ultimately led to your discharge.  You further contend that although these conditions do not completely excuse or justify your actions, there is no question your conditions contributed to those actions and therefore mitigate your misconduct.  Additionally, you contend that it would be entirely unfair, unjust, and inequitable for your OTH discharge to stand in light of the Hagel memo.   
 
Additionally, the Board considered your contention that your overall service record and your post-discharge conduct are deserving of an honorable characterization of service.  Specifically, you highlight that your record does not contain misconduct prior to the onset of your personal and professional struggles.  You further emphasize that your honorable service during the Gulf War deserves significant recognition.  The Board also considered your contention that the personal struggles that led to your depression and alcohol abuse were the result of your efforts to do what you thought was “right and honorable” and that rather than choosing to ignore and/or run from your parental responsibilities, you embraced them and made the best of the difficult situation.  Lastly, the Board considered your post-discharge attainment of a master’s degree in nursing, your continued gainful employment, and the beneficial work you do in the medical field that benefits the general public.  The Board however noted you did not provide any documentation or advocacy letters in support of your request for an upgraded characterization of service.   
 
Relying upon the AO, the Board concluded there was insufficient evidence of a mental health condition attributable to your military service that mitigated your misconduct.  After careful consideration of each of your contentions, the Board did not find evidence of an error or injustice that warrants upgrading your characterization of service.  Additionally, noting the absence of advocacy letter or clemency matters, the Board determined there was insufficient evidence to warrant clemency.  Even under the liberal consideration standard, the Board found your misconduct warranted an OTH characterization of service.   
 
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,