Docket No: 5619-19
Ref: Signature Date

MR 
 
Dear Mr.: 
 
This letter is in reference to your reconsideration request dated 3 June 2019.  You previously petitioned the Board for Correction of Naval Records (Board) and were advised that your application had been disapproved.  Your case was reconsidered in accordance with Board procedures that conform to Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004).  After careful and conscientious consideration of the entire record, the 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 original 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 6 November 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 and personal statement, together with all material submitted in support thereof, relevant portions of your naval record, an Advisory Opinion (AO) from a qualified mental health provider, and applicable statutes, regulations and policies.  
 
Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will 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.  
 
You enlisted in the Marine Corps on 2 November 1973.  While still at initial recruit training, on 30 November 1973 you received non-judicial punishment (NJP) for failing to obey a lawful order.  On 28 March 1974 you received NJP for unauthorized absence (UA) lasting nine days.  On 7 June 1974 you were convicted at a Summary Court-Martial (SCM) for UA lasting 41 days.  On 25 July 1974 you received NJP for communicating a threat.  On 13 November 1974 you were convicted at a second SCM for a 32 day UA.   
 
Following another UA period, on 3 March 1975 you underwent a psychiatric evaluation and were diagnosed with an inadequate personality disorder, chronic, severe, with passive-aggressive features, existed prior to entry (EPTE).  The Medical Officer determined that you were mentally responsible for your actions but unsuitable for retention. 
 
On 20 March 1975, you submitted a voluntary written request for an undesirable discharge (UD) for the good of the service to avoid trial by court-martial for a UA period that occurred in January and February of 1975.  Prior to submitting this voluntary discharge request, you conferred with a qualified military lawyer, at which time you were advised of your rights and warned of the probable adverse consequences of accepting such a discharge, and also that you may be deprived of virtually all veterans’ rights/benefits if separated with an undesirable discharge.  Ultimately, on 15 December 1976 you were separated from the Marine Corps with an other than honorable (OTH) discharge.   
 
On 17 April 1979 the Naval Discharge Review Board (NDRB) determined that your OTH discharge was proper and that no change was warranted.  The NDRB noted that you failed to provide clear and specifically stated contentions or issues, and that you did not present any evidence to support an issue regarding the propriety of the discharge. 
 
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.  
 
As part of the Board review process, the Board’s Physician Advisor, who is a medical doctor and Fellow of the American Psychiatric Association (MD), reviewed your contentions and the available records, and issued an AO dated 24 September 2020.  The MD noted that other than your diagnosed personality disorder, a review of your service records did not provide evidence of behavioral changes or psychological symptoms indicative of any diagnosable mental health conditions, and that the majority of psychological symptoms and behaviors reported by you occurred after your discharge.  The MD concluded by opining that although you have a post-discharge mental health diagnoses, there was insufficient evidence that your mental health conditions were service-connected or would mitigate your in-service misconduct. 
 
The Board carefully weighed all potentially mitigating factors, such your contentions that included, but were not limited to:  (a) the evidence demonstrates that your mental health issues started in-service and were the cause of your misconduct, (b) your medical issues were not previously considered by the Board, and (c) the evidence shows only minor offenses were the subject of your NJPs and court-martials leading to your discharge.  Unfortunately, the Board determined these mitigating factors and contentions were not sufficient to warrant upgrading your discharge or granting any other 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, the Board concurred with the AO and concluded that there was no nexus between any mental health issues and/or symptoms and your misconduct, and determined that there was insufficient evidence to support the argument that any such mental health conditions mitigated the misconduct that formed the basis of your discharge.  Even under the liberal consideration standard, the Board concluded that your pattern of misconduct was not due to mental health conditions or their related symptoms.   
 
The Board noted that the evidence of record did not demonstrate that you were not responsible for your conduct or that you should not be held accountable for your actions.  The Board determined that your undesirable discharge request was voluntary on its face, and there is no indication that your due process rights were violated.  Additionally, absent a material error or injustice, the Board generally will not summarily upgrade a discharge solely for the purpose of facilitating benefits from the Department of Veterans Affairs, or enhancing educational or employment opportunities.  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 your pattern of misconduct merited your receipt of an OTH discharge. 
 
The Board also 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 and reviewing the record holistically, 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 reconsideration petition 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 the absence of new matters for reconsideration, the decision of the Board is final, and your only recourse would be to seek relief at no cost to the Board from a court of appropriate jurisdiction. 
 
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,