Docket No: 5679-19/
           6361-84
Ref: Signature Date                         
        
MR 

ear Mr. : 
 
This letter is in reference to your reconsideration request received on 5 June 2019.  You previously petitioned the Board for Correction of Naval Records (Board) for an upgrade to your characterization of service, and were advised that your application had been disapproved.  After careful and conscientious consideration of the entire record, the Board found the evidence submitted with this reconsideration request to be insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied.      
 
Your application was carefully examined by a three-member panel of the Board, sitting in executive session, 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 the material submitted in support thereof, relevant portions of your naval service record, applicable statutes, regulations and policies, and an advisory opinion (AO) from a qualified mental health professional dated 30 September 2020. 
 
You enlisted in the Marine Corps on 3 December 1973.  On 11 September 1974, you received nonjudicial punishment (NJP) for sleeping on post.  From 23 April 1975 to 1 May 1975, you participated in Operation FREQUENT WIND, the evacuation of Saigon.  On 20 October 1975, you received a second NJP for a nine-day unauthorized absence (UA).  On 21 November 1975, you received a third NJP for a single-day UA.  On 27 January 1976, you received a fourth NJP for a 10-day UA.  You had another period of UA from 20 February 1976 to 26 May 1976, after which a court-martial charge was preferred against you.  This charge was subsequently referred to a special court-martial empowered to adjudge a bad-conduct discharge.  On 16 June 1976, after consulting with qualified military counsel, you submitted a written request for discharge for the good of the service to avoid trial by court-martial for this period of UA period.  In making this request, you acknowledged that you would receive an undesirable discharge.   Your request was granted, and on 23 July 1976 you were discharged with an other than honorable (OTH) characterization of service. 
 
In light of your assertion that you now suffer from post-traumatic stress disorder (PTSD), and the determination of the Department of Veteran’s Affairs (VA) that this condition was connected to your service in Vietnam for treatment purposes, the Board considered your application in accordance with the guidance provided by the Secretary of Defense memorandum of 3 September 2014,  “Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requested by Veterans Claiming Post Traumatic Stress Disorder”; and the Under Secretary of Defense for Personnel and Readiness memorandum of 25 August 2017, “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.”  Accordingly, the Board applied liberal consideration to your claim of PTSD and the effect that it may have had upon the misconduct that resulted in your discharge.  In this regard, the Board considered the AO provided by the BCNR’s Physician Advisor, dated 30 September 2020, that there is sufficient indirect evidence that you incurred PTSD as a result of your military service and that the majority of your in-service misconduct can be attributed to your mental health condition.  Even applying liberal consideration and considering the AO, the Board found insufficient evidence to conclude that your PTSD excused or mitigated your misconduct or discharge to warrant relief.  The Board does not doubt that you now have PTSD, but it did doubt that this condition arose due to your military service or that it had anything to do with the misconduct for which you were discharged.  It reached this conclusion for several reasons.  First, while the Board acknowledges that the VA found a service connection for your PTSD based upon your experiences during Operation FREQUENT WIND, the basis for this conclusion was not supported by the psychological treatment records that you provided which were prepared close in time to the VA’s service-connection determination.  These treatment records reflect that the stressors that you described in seeking psychological assistance were limited to your inability to acquire VA benefits, your associated financial difficulties, and the challenges inherent in caring for your ill spouse.  Nowhere in these records did you mention any stressors related to your traumatic experiences in Vietnam that the VA relied upon to establish the service connection for your PTSD.  It was only during the evaluation to determine whether you would receive the benefits that you believed yourself entitled to that you first raised the issue of your traumatic combat experiences.  Second, you have previously explained to both this Board and to the Naval Discharge Review Board why you repeatedly went UA.  Specifically, you have explained that you went UA repeatedly because you were frustrated with issues related to your pay and that your commanding officer was always on your case.  Based upon these factors, the Board found insufficient evidence to conclude that your discharge was excused or sufficiently mitigated by your PTSD to warrant your requested relief. 
 
The Board also considered the totality of the circumstances in accordance with the guidance provided by the Under Secretary of Defense memorandum of 25 July 2018, “Guidance to Military Discharge Review Boards and Boards for Correction of Military / Naval Records Regarding Equity, Injustice, or Clemency Determinations,” to determine whether the interests of justice warrant an upgrade to your characterization of service.  In this regard, the Board considered all of the potentially mitigating factors, including but not limited to, the fact that you are now suffering from PTSD and that the VA has awarded a service-connection for this condition for treatment purposes; that you participated in Operation FREQUENT WIND in Vietnam; your assertion that you have paid for your error in the Marine Corps and deserve a better discharge; your assertion that you were lied to by your recruiter regarding your eligibility for an enlistment bonus; that you were dealing with pay issues at the time of the misconduct which resulted in your discharge, and that these pay issues influenced you to go UA; your record of employment subsequent to your discharge, culminating in your retirement after 24 years in 2008; your erroneously belief that your characterization of service would be upgraded within six months after your discharge from the Marine Corps; that you were relatively young and immature at the time of your misconduct; and that a significant period of time has passed since your discharge.  Although you presented no new advocacy letters or documentation with your present reconsideration request, the Board did consider the character letters and documentation that you had previously submitted to the Board.  Even considering these mitigating factors, however, the Board determined that the interests of justice do not warrant an upgrade to your characterization of service at this time.  In reaching this conclusion, the Board found that you misconduct significantly outweighed the mitigating circumstances.  You requested an OTH characterization of service to avoid the potentially more significant consequences of a court-martial for your serious misconduct.  By itself, a three-month UA may not seem significant, but your UA was aggravated by the fact that it was preceded by several others for which you received NJP.  Further, contrary to your claim that you were informed that your characterization of service would be upgraded within six months of your discharge, your records contain an acknowledgement of the advice that you received when requesting your discharge in lieu of court-martial that such relief under the circumstances of your discharge was very unlikely.  Finally, the Board noted that your record reflects evidence that you have been incarcerated for some period of time since your discharge from the Navy.  The Board does not know the circumstances of this incarceration and drew no conclusions therefrom, but this fact did weigh against the consideration of relief in your case.  Ultimately, the Board found no injustice in the continued characterization of your service in the Marine Corps as OTH. 
 
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.  It is important to keep in mind that a presumption of regularity attaches to all official records.  Consequently, when applying for a correction to an official naval record, the burden is on the applicant to demonstrate the existence of probable material error or injustice. 
 
Sincerely,