Docket No: 5393-19
Ref: Signature Date              

MR
 
Dear Mr.: 
 
This is in reference to your application for correction of your naval record pursuant to Section 1552 of Title 10, United States Code.  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.     
 
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 11 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, applicable statutes, regulations and policies, as well as an advisory opinion (AO) from a qualified mental health professional dated 7 June 2019, a legal AO dated 12 June 2020, and your rebuttal statements and documentation. 
 
You enlisted in the Selected Marine Corps Reserve (SMCR) on 17 April 1998 with a reserve obligation termination date of 16 April 2006.  From 14 January 2002 until 21 December 2002 and again from 8 March 2003 to 9 September 2003, you were activated under Executive Order 13223 in support of Operation Enduring Freedom in response to the World Trade Center and Pentagon attacks.  From 30 March 2003 to 31 July 2003, you were specifically deployed to Iraq in support of Operation Enduring Freedom and Operation Iraqi Freedom.  On 12 May 2005, you transferred to the Inactive Ready Reserve (IRR).   
 
On 15 December 2005, your civilian employer, the   Police Department ( ), initiated an investigation when you did not submit records reflecting your attendance at your reserve drills on 15-17 July 2005, 5-7 August 2005, and 19-21 August 2005.    conferred with your unit and determined the documents you submitted were fraudulent because you did not attend drill on those dates and, by reporting those dates as reserve drill dates, the   still paid you for those civilian work days.  Subsequently, you were notified of pending administrative separation action by reason of misconduct due to commission of a serious offense for wrongfully obtaining $1171.87 under false pretenses, soliciting a sergeant to acknowledge that you were still in a drilling status, and falsifying orders.  The notification was mailed to the permanent address on file but returned to the command on 7 March 2006.  The notification was then mailed to your parents’ home address.  After no response within the allotted time, you were deemed to have waived your procedural rights.  The record is incomplete in that it does not contain the commanding officer (CO) recommendation but the record shows the staff judge advocate (SJA) reviewed the proceedings on 22 March 2006 and determined they were sufficient in law and fact.  After the SJA review, the discharge authority directed discharge with an other than honorable (OTH) characterization of service by reason of misconduct due to commission of a serious offense.  On 24 March 2006, you were discharged from the SMCR with an OTH characterization of service.    
 
Your request for a change to your characterization of service was reviewed in consideration of your contention you have been diagnosed with Post-Traumatic Stress Disorder (PTSD).  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 7 June 2019. The AO noted you have been diagnosed with PTSD that can be attributed to military service.  However, the AO concluded it is difficult to attribute your misconduct to symptoms of PTSD.  Fraud, larceny, and attempts to cover deceitful behavior are not symptoms of PTSD. Based on the available evidence, the AO concluded there is insufficient evidence to attribute your misconduct to PTSD.  The AO was provided to you on 10 June 2019.  The Board considered your rebuttal to the AO and supporting documentation received in an undated letter. 
 
Additionally, the Board requested a legal AO from Headquarters Marine Corps, Judge Advocate Division, regarding your contention the Marine Corps lacked jurisdiction over you at the time of the administrative separation because you were not subject to the Uniform Code of Military Justice (UCMJ).  The AO stated that, although a member of the Ready Reserve (including the IRR) is not subject to the UCMJ when not in an active or inactive duty status, the conduct of a member of the IRR may form the basis for administrative separation but only conduct in the civilian community that directly affects the performance of military duties may result in an OTH characterization of service.  The AO also addressed your contention the command’s attempts to serve you with the administrative separation paperwork were legally deficient.  The AO stated that sending the notification of administrative separation processing to the address provided as your permanent address and then, when not claimed, sending the letter to your parents’ home where delivery was accepted was not a due process violation.  The AO determined the command was diligent in its efforts to communicate with you regarding your rights before an administrative separation board and when you did not respond within the timeframe allowed, your right to a hearing before an administrative separation board was waived in accordance with MCO P1900.16F.  Lastly, the AO addressed your contention that some of the dates listed on the notification paperwork were dates when you worked for the   and this error calls into question the “veracity of the entire complaint.”  The AO concluded that the fact you were later cleared of misconduct for two of the days initially questioned by the   does not affect the veracity of the entire complaint.  The AO was provided to you on 16 June 2020.  The Board considered your rebuttal to the AO. 
 
The Board carefully reviewed your application, weighed all potentially mitigating factors, and considered your contentions that the material errors and material injustice warrant an upgrade to your characterization of service.  The Board considered your contention that the errors of procedure are “fatal to the discharge proceedings” and the combination of the errors have clearly prejudiced you because you have been burdened with an OTH discharge unlawfully and without opportunity to fight the separation.  Specifically, the Board considered your contention that the Marine Corps did not have jurisdiction to process you for administrative separation while you were in an IRR status.  Relying upon the legal AO, the Board determined it was not error or injustice to administratively separate you with an OTH characterization of service while you were in an IRR status because the conduct of a member of the IRR may form the basis for administrative separation and, when the conduct directly affects the performance of military duties, the civilian conduct may form the basis for characterization under OTH conditions.  The Board concluded your conduct was directly related to your military duties because you lied about performing your military duties in order to obtain pay from the NYPC to which you were not entitled.  The Board concurred with the AO that your conduct was both service-related and service discrediting and concluded the Marine Corps had jurisdiction to process you for administrative separation.   
 
The Board also considered your contention that the lack of notice you received regarding the administrative separation proceedings was a material error of procedure.  Specifically, you contend the command sent the separation notice to the wrong address and then to your parents’ address when you were no longer living there.  Since your parents did not open the mail and you did not return home to open the notice until after the period to make your due process election had passed, you contend the Marine Corps deprived you of your guaranteed rights such as conferring with counsel, submitting rebuttal matters, or defending yourself at an administrative separation board.  The Board also noted the second Naval Discharge Review Board report states you changed your physical address during the time the command was attempting to notify you but did not ensure your reserve unit had an accurate and current mailing address.   Relying upon the AO, the Board determined it was not error or injustice to proceed with the administrative separation processing after the timeframe for responding to the notification had elapsed because the command followed the required procedural steps and made a reasonable effort to communicate with you regarding your rights.    
 
Additionally, the Board considered your contention that your chain of command made a material error of fact regarding a portion of the time that you were alleged to have defrauded the government by claiming you were on drill.  Specifically, you contend that two of the dates enumerated in the Marine Corps documentation are 20-21 August 2005, two dates which your   log books shows you were on duty.  You contend this demonstrates an “extremely problematic error of fact by the Marine Corps because it establishes that the circumstantial evidence they relied upon to make the determination to separate” you was “entirely erroneous” so the veracity of the entire complaint becomes “dubious when the situation is thoroughly evaluated.”  The Board relied in part on the AO.  Specifically, the Board noted you were cleared for 20-21 August 2005 but determined sufficient evidence still remained that established you committed misconduct which warranted administrative separation.  The Board, noting your rebuttal, did not rely upon the AO’s comment that you “admitted misconduct by repaying the wages received” and resigning from the N .   
 
Further, the Board considered your contention that, at the time of your misconduct, you were suffering from PTSD, depression, and alcohol abuse.  Relying upon the AO, the Board noted you have been diagnosed with PTSD that can be attributed to military service but concluded fraud, larceny, and attempts to cover deceitful behavior are not symptoms of PTSD.  
  
Lastly, the Board considered your contention you have been “improperly stigmatized and harmed” by your OTH discharge and deprived of your honor and your good name.  Further, you contend the OTH will continue to burden you and your family until it is corrected.  The Board, noting you did not submit any advocacy letters or post-discharge achievements to be considered for clemency purposes, determined there was insufficient evidence to establish an error or injustice that warrants an upgrade to your characterization of service.   
 
In reviewing the circumstances of your separation and characterization of service, the Board considered the totality of the circumstances to determine whether relief is appropriate today in the interests of justice in accordance with guidance provided by the Under Secretary of Defense for Personnel and Readiness (Wilkie Memo of 25 July 2018).  Accordingly, the Board considered and acknowledged your positive contributions to the Marine Corps, the length of your active duty service to our nation, and your post-discharge achievements.  Even considering these potentially mitigating factors in accordance with the above referenced guidance, the Board did not find that relief was in the interest of justice.  The Board concluded that your OTH discharge characterization was issued without error or injustice, and that corrective action is not warranted. 
 
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.   
 
Sincerely,