Docket No: 5153-19 Ref: Signature Date 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. A three-member panel of the Board, sitting in executive session, considered your application on 30 June 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, as well as applicable statutes, regulations, and policies. You enlisted in the Marine Corps and began a period of active duty on 12 June 1987. On 12 September 1988, you received nonjudicial punishment (NJP) for disrespect toward an NCO, assault, and communicating a threat. In March 1989, you were found guilty at special court-martial (SPCM) for a period of unauthorized absence (UA) from 20 October 1988 to 15 January 1989. You were sentenced to forfeiture of $150 pay per month for 4 months, confinement for 4 months, and reduction in rank to E-1. On 2 July 1991, your received a second NJP for a period of UA from 29 May 1991 to 31 May 1991, and for disobedience of a lawful order. On 17 September 1991, you were found guilty at SPCM of violating Article 91 (did treat with contempt and was disrespectful in language), Article 128 (assault), and Article 134 (wrongfully communicating a threat). You were sentenced to reduction in rank to E-1, forfeiture of $250 pay per month for 4 months, confinement for 105 days, and a bad conduct discharge (BCD). In your application for correction, you ask for an upgrade to your discharge characterization so that you can receive benefits for the time you served in the Marine Corps. You state that you never told your side of the story, you had just returned from the Gulf War and were already suffering from Post-Traumatic Stress Disorder (PTSD) at the time of your misconduct. You provide a personal statement in which you give background on the events which ultimately resulted in your second SPCM conviction. You state that you were with a fellow Marine during off base liberty, when you were harassed by more senior enlisted Marines who threatened you. You state that you responded to the threats by bashing the head of one of the Marines into the concrete and punching and kicking him. You contend that you learned that the Marine who was with you was killed in an accident, which meant you no longer had a key witness. You state that without the witness, you accepted the deal of BCD and time served. You now realize that you should have fought against the false allegations. 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,” 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.” The Board, in its review of your entire record and application, carefully considered your claim of suffering from PTSD following your return from the Gulf War. The Board noted that you did not provide medical information pertaining to a mental health diagnosis either while you were in the Marine Corps or following your discharge. Absent information or evidence establishing a mental health condition that existed at the time of your misconduct and which may have mitigated your behavior, the Board found that liberal consideration as envisioned by the applicable guidance was not appropriate. The Board considered your statement about the loss of your friend and key witness prior to the SPCM proceedings, and noted that you claim to have been subjected to false accusations. The Board reviewed the available court records for the 1991 SPCM and the 1993 Naval Clemency and Parole Board decision to deny clemency. The Board concluded that the judicial proceedings were executed without error or injustice, you were afforded appropriate post-trial review, and that the misconduct of which you were found guilty at SPCM supported the BCD. The Board concluded that the seriousness of your assault of a fellow Marine is not overcome by your claims of injustice. The Board found that your BCD was issued without error or injustice, and does not merit corrective action. 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 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 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.