Docket No: 5682-19 Ref: Signature Date MR Dear Mr.: 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 was 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 10 August 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. Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to its 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 and began a period of active duty on 19 June 1995. Your record reflects that you were counseled for deficiencies several times between 23 August 1996 and 18 March 1998. The deficiencies included: lack of maturity and attention to detail, submitting a false lease to your chain of command and lying, lack of judgement in the ability to manage finances and writing bad checks, and a proficiency mark of below 3.0 which was due to poor and unacceptable performance. On 16 March 1998, you received an administrative remark noting that you were eligible, but non-recommended to advance to corporal due to lack of leadership. On 12 March 1998, you received nonjudicial punishment (NJP) for willfully disobeying a first lieutenant’s command to bring in your lease. On 9 October 1998, you received another NJP for operating a personally owned vehicle on base while your base driving privileges were suspended. On 30 April 1999, you received a third NJP for insubordination, disobeying a lawful order, provoking speech and gestures, and assault. You were discharged on 18 June 1999, upon completion of your required period of active service. You received a general characterization of service and a reentry (RE) code of RE-4. In your application for consideration, you ask that your discharge characterization be upgrade and that your RE-4 code be changed. You state that you had a brain tumor at the time of your service. You contend that the Staff Sergeant who wrote your military documents should not have been allowed to do so because the Staff Sergeant was the one who forcefully put his hands on you in a threatening manner that caused you to react. You provide a personal statement in which you disclose that on 11 July 2018, you found out you had a Traumatic Brain Injury, Meningioma, which is a massive brain tumor that takes up the right side of your brain and has caused considerable health issues. You had brain surgery in October 2018, and the negative mood swings and irritability from which you previously suffered have ceased. You provide a 17 October 2018 letter from the University of , Department of Neurosurgery, which states that you reported a history of hearing loss from your time in the military, and based on the provider’s medical opinion, your symptoms “are as likely as not related to [your] military service when [you] worked with Mortar and explosives.” The Board noted that you raise the issue of a service-connected traumatic brain injury and/or health condition that might have mitigated your misconduct. Accordingly, 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 weighed all potentially mitigating factors, including your contention that your misconduct was mitigated by the existence of a medical condition (brain tumor) and traumatic brain injury. The Board reviewed your available service record and took into account the 2018 letter from the . The Board considered that the letter from the does not indicate that you were suffering from a brain tumor or traumatic brain injury at the time of your military service that might have mitigated your misconduct, and seems to infer that your hearing loss was related to your work with Mortar and explosives. The Board determined that your post-discharge 2018 diagnosis of a brain tumor and the letter from the do not establish that you suffered from mental health, traumatic brain injury, or brain tumor at the time of your military service. The Board found that there is insufficient evidence to find that you had a brain tumor while you were in the Marine Corps, and that the brain tumor impacted your conduct. Based on a review of the information in your record, the Board concluded that your three NJPs and numerous counseling entries between August 1996 and April 1999, supported the issuance of a discharge with a General characterization of service and an RE-4. 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. Sincerely,