Docket No. 5770-19 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 the entire record, 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 for Correction of Naval Records, sitting in executive session, considered your application on 24 July 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, and applicable statutes, regulations and policies. You originally enlisted in the Marine Corps on 11 May 1976. On your pre-enlistment medical history you denied all psychological/neurological conditions and symptoms. On 10 September 1976, you commenced a period of unauthorized absence (UA) lasting three days. On 12 October 1976, you commenced a period of unauthorized absence (UA) lasting seven days. On 27 October 1976, you commenced a period of unauthorized absence (UA) lasting seventy-two days that terminated with your arrest by the FBI. On 4 February 1977, you submitted a written request for a discharge under conditions other than honorable (OTH) for the good of the service in lieu of trial by court-martial for your three UA offenses. However, on 16 February 1977 your request was denied and you were retained on active duty. On 7 March 1977, pursuant to your guilty pleas, you were convicted at a Special Court-Martial (SPCM) of three specifications of UA, and disobeying a lawful order by wrongfully possessing a controlled substance. You received as punishment, confinement at hard labor for forty-five days, forfeitures of pay, and a discharge from the Marine Corps with a Bad Conduct Discharge (BCD). On 21 April 1977, the Convening Authority approved your sentence as adjudged and modified. The Convening Authority suspended that portion of your sentence pertaining to confinement at hard labor in excess of twenty-nine days for a period of six months. On 9 May 1977, you commenced a period of UA lasting 133 days. On 15 September 1977, the Navy Court of Military Review affirmed the SPCM findings and sentence. On 23 September 1977, you commenced a period of UA lasting 163 days that terminated on 6 March 1978 with your arrest by civilian authorities. On 31 March 1978, on your discharge physical neither you nor the examining Medical Officer noted any psychological/neurological abnormalities. Following your request to immediately execute your BCD, your punitive discharge was ordered executed and on 6 April 1978 you were discharged from the Marine Corps with a BCD. On 28 July 1982, the Naval Discharge Review Board denied you any relief and determined that your discharge was proper as issued and that no change was warranted. Your contention that you suffered from a mental health condition 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. The Board carefully weighed all potentially mitigating factors, such your contentions that included, but were not limited to: (a) you have a mental health problem, (b) the court-martial was unjust because the marijuana was in another Private’s locker and you got charged for it, and (c) in July 2018, the Social Security Administration (SSA) determined that you have paranoid schizophrenia, anxiety disorder, depression, and alcohol/substance use disorder. The Board, however, concluded that these factors and contentions were not sufficient to upgrade your discharge or grant 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 and any mental health conditions you experienced and their possible adverse impact on your service. However, the Board concluded that there was insufficient evidence: (a) to support a nexus between any mental health conditions and/or mental health-related symptoms and your SPCM offenses, or (b) to support the argument that any such mental health conditions or symptoms mitigated the misconduct that formed the basis of your court-martial and BCD. Even under the liberal consideration standard, the Board concluded that your SPCM misconduct was not due to mental health issues or mental health-related symptoms. Accordingly, the Board determined that there was no impropriety or inequity in your conviction and discharge, and that your serious misconduct more than merited your receipt of a BCD. The Board also noted that, although it cannot set aside a conviction, it might grant clemency in the form of changing a characterization of discharge, even one awarded by a court-martial. However, the Board concluded that, despite your contentions, this is not a case warranting any clemency. During both your SPCM trial and the SPCM post-trial appellate review process, no substantive, evidentiary, or procedural defects were discovered with your conviction. Had any actual defects existed, either the trial court or the three-judge appellate court on review would have concluded as such and ordered the appropriate relief. The Board noted that you were properly convicted at a SPCM of serious misconduct and had additional significant post-SPCM misconduct. Thus, the Board did not find any evidence of an error or injustice in this application that warrants upgrading your BCD. The Board also noted that SSA eligibility determinations for health care, disability compensation, and other SSA-administered benefits are for their internal SSA purposes only. Such SSA eligibility determinations and/or discharge classifications are not binding on the Department of the Navy and in your case have no bearing on your previous active duty service discharge characterization. Additionally, the Board 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, 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 case are such that favorable action cannot be taken. 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,