Docket No: 5375-19 
               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 relevant portions of your naval record and your application, the Board for Correction of Naval Records (Board) found the evidence submitted insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied.     
  
The Board determined that your personal appearance, with or without counsel, would 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. 
 
Although you did not file your application in a timely manner, the statute of limitation was waived in accordance with the 25 August 2017 guidance from the Office of the Under Secretary of Defense for Personnel and Readiness (Kurta Memo).  A three-member panel of the Board, sitting in executive session, considered your application on 16 October 2020.  The names and votes of the panel members 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) furnished by a mental health professional, your rebuttal statement to the AO, and applicable statutes, regulations, and policies, to include the Kurta Memo, the 3 September 2014 guidance from the Secretary of Defense regarding discharge upgrade requests by Veterans claiming post-traumatic stress disorder (PTSD) (Hagel Memo), and the 25 July 2018 guidance from the Under Secretary of Defense for Personnel and Readiness regarding equity, injustice, or clemency determinations (Wilkie Memo). 
 
You enlisted in the Marine Corps and began a period of active duty on 27 March 1983.  During the period from 9 February 1984 to 2 October 1984, you received nonjudicial punishment (NJP) on three occasions for three specifications of being absent from your appointed place of duty, disobeying a lawful order, and wrongful use of marijuana.  On 2 October 1984, you began a period of unauthorized absence (UA) that lasted 98 days, ending on 8 January 1985.  On 17 January 1985, you submitted a written request for an undesirable discharge for the good of the service in order to avoid trial by court-martial for 98 days of UA.  Prior to submitting this request for discharge, you conferred with a qualified military lawyer, were advised of your rights, and warned of the probable adverse consequences of accepting such a discharge.  Subsequently, your request for discharge was granted, and on 11 February 1985, you received an other than honorable discharge in lieu of trial by court-martial.   
 
A qualified mental health professional reviewed your request for correction to your record and provided the Board with an AO regarding your assertion that you were suffering from a mental health condition during your service.  The AO noted there was insufficient evidence of a mental health condition at the time of your enlistment attributable to your military service that may have mitigated your misconduct. 
 
The Board considered your assertions that you had a nervous breakdown, and started having serious mental issues dealing with depression after your fiancé broke of your engagement in July 1984.  You further assert that you were upset and went into a UA status; and you never received any psychological treatment while in the Marine Corps, which you believe could have helped you complete your term of enlistment.  The Board concluded these factors and assertions were not sufficient to warrant changing your characterization of service.  Further, the Board concurred with the AO’s statement that there was insufficient evidence of a mental health condition at the time of your enlistment attributable to your military service that may have mitigated your misconduct. 
 
The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in your case in accordance with the Wilkie Memo.  These included, but were not limited to, your record of service, and your desire to upgrade your discharge.  Based upon this review, the Board concluded these potentially mitigating factors were insufficient to warrant relief.  Specifically, the Board determined that your repeated misconduct, as evidenced by your three NJPs and lengthy UA, outweighed these mitigating factors.  Accordingly, given the totality of the circumstances, the Board determined that your request does not merit relief.  
 
Please be advised that your rebuttal statement to the AO, was received after the Board convened, and voted to deny your request for an upgrade of your characterization of service.  However, your response was forwarded to the Board members for review, and the Board still concluded the factors and assertions were not sufficient to warrant changing your characterization of service given your misconduct. 
 
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,