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, and applicable statutes, regulations and policies.   
 
You enlisted in the Marine Corps on 19 September 1995.  On 14 February 1997 you commenced a period of unauthorized absence (UA) from your unit at .  On 17 March 1997 you were declared a deserter and dropped from the rolls.  On 3 June 1998 your UA ended after 474 days when you returned yourself to military control on board  .   
 
Following your return to military control, you were convicted at a Special Court Martial (SPCM) of UA.  As part of your punishment, you were sentenced to be discharged from the Marine Corps with a Bad Conduct Discharge (BCD).  Upon the completion of the post-trial appellate review process in your case, you were discharged from the Marine Corps with a BCD on 20 August 1998. 
 
Your contention that you suffered from mental health issues 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.  
 
The Board carefully weighed all the potentially mitigating factors in your petition, including but not limited to your contentions that:  (a) your desertion was due to a lack of medical treatment for a back injury, and anxiety from the injury, which you incurred during active duty in 1995 when you were lifting a towing hitch as a mechanic for the motor pool; (b) you were told you would have an other than honorable discharge (OTH) and instead were given a BCD; (c) you were convicted at a court-martial due to desertion after undergoing military care; (d) you are still under the care of a psychologist and this has plagued you now for over 24 years; and (e) you help veterans with your MRP certificate and enjoy giving back to veterans by helping them find the home of their dreams.  Unfortunately, the Board determined these mitigating factors and contentions were not sufficient to warrant upgrading your discharge or granting any other requested 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 insufficient 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 misconduct was not due to mental health-related symptoms.  Moreover, the Board observed that you did not submit any active duty or post-service clinical documentation or treatment records to support your mental health claims despite a request from BCNR on 12 September 2019 to provide additional documentary material.   
 
The Board also noted that OTH and GEN discharges are administrative discharges, and that a BCD is a punitive discharge and is the only type of discharge that can be awarded as part of a court-martial sentence.  As a result, any argument that you were told you would receive either an OTH or GEN discharge was not supported by the record.  Additionally, 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.  Lastly, 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.  The Board considered your post-service accomplishments, but ultimately concluded your misconduct still warranted a BCD characterization.  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 the misconduct reflected in your record merited receipt of a BCD.   
 
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 concluded that, despite your contentions, this is not a case warranting clemency.   
 
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,