DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 

Docket No. 5946-19 
Ref: Signature Date 

This letter is in reference to your reconsideration request dated 6 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. 

A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 7 November 2019.  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.  Additionally, the Board considered the advisory opinion contained in BUMED letter 5740 Ser M34/17UM34235 of 12 July 2017, a copy of which was previously provided to you for comment as part of your previous application. 

The Board carefully considered your arguments that you deserve a disability discharge.  You assert evidence of your personality disorder was not presented as evidence in your 5 November 1981 special court-martial.  As a result, you believe that you were erroneously discharged with a bad conduct discharge. Unfortunately, the Board disagreed with your rationale for relief.  The Board did not find your arguments of an erroneous discharge persuasive and concluded that the preponderance of the evidence supports your bad conduct discharge.  First, the Board noted that you were convicted by a special court-martial and received appellate review of your conviction before your bad conduct discharge was executed.  In the Board’s opinion, the due process afforded you through the trial and appellate review process provided you the opportunity to submit evidence in support of your defense.  So the failure to submit medical evidence regarding your personality disorder diagnosis was not an error attributable to the Marine Corps.  Second, the 28 August 1981 medical diagnosis for schizotypal personality disorder also stated you were able to control your behavior and, therefore, were responsible for your misconduct.  This was additional evidence to the Board that there was no injustice in your conviction and discharge despite your mental health diagnosis.  The Board noted your counsel’s letter of 30 April 2019 to the Department of Veterans Affairs (VA) arguing for insanity.  Based on the medical opinion from 28 August 1981, the Board concluded you were mentally responsible for your misconduct.  Further, the Board determined the VA standards for granting compensation based on a finding of insanity are different from the insanity standard utilized in criminal proceedings.  Based on this finding, the Board decided your arguments to the VA were not probative on the issue of criminal responsibility.  Third, the Board found that you were not diagnosed with a ratable disability condition since personality disorders are defined as conditions not amounting to a disability condition.  Therefore, the Board determined you were not eligible for disability processing based on your personality disorder diagnosis.  Fourth, the Board also concluded you were not eligible for military disability processing since you were convicted by a special court-martial and awarded a punitive discharge.  Disability regulations directed misconduct processing to supersede any disability processing.  Accordingly, even after applying liberal consideration to the evidence in your case, the Board found insufficient evidence of error or injustice to warrant a change to your record. 

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,

 
11/12/2019