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

Docket No: 611-19 
Ref: Signature Date 

Dear ,

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, sitting in executive session, considered your application on 20 February 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, the 16 September 2019 Advisory Opinion (AO) from a Navy mental health provider, and applicable statutes, regulations and policies. 

You enlisted in the Marine Corps Reserve (USMCR) on 29 May 1997. Following your initial period of active duty for training where you received an honorable discharge on 23 August 1997, you began serving your USMCR commitment. 

On 9 July 1998, you went to non-judicial punishment (NJP) for the larceny and forgery of personal checks belonging to a Marine Corps Staff Sergeant and for unauthorized absence (UA) lasting 16 days.  On 10 July 1998, you received a written page 11 counseling warning (Page 11) documenting your NJP and your deficient performance and conduct.  On 2 October 1998, you went to NJP for two specifications of UA, one of which lasted for eleven (11) days. 

On 6 July 1999, pursuant to your guilty plea, you were convicted at a Special Court Martial (SPCM) for being in a UA status from 30 November 1998 until your arrest on 5 June 1999.  You received as punishment 60 days of confinement, and a discharge from the Marine Corps with a Bad Conduct Discharge (BCD).  Following the completion of the post-trial appellate review process in your case on 30 June 2000, your punitive discharge was ordered executed, and ultimately on 6 July 2000 you were discharged from the Marine Corps with a BCD. 

Your contention that you suffered from post-traumatic stress disorder (PTSD) and bipolar disorder 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, “ClarifyingGuidance 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.” 

A Navy military mental health provider (MHP), reviewed your contentions and the available records, and provided the Board the AO.  The MHP noted that you did not submit any clinical documentation or treatment records to support a mental health diagnosis.  The MHP concluded that there is insufficient evidence to attribute your misconduct to a mental health condition suffered during military service.
 
The Board carefully weighed all potentially mitigating factors, such your contentions that included, but were not limited to:  that you were going through life changing stress when you went UA in the summer of 1998, that you had a child born during your UA, that the stress of training for boot camp and other training gave you PTSD, that your bipolar disorder explains a lot of your mental issues you had while you were a Marine, that you never recovered from the stress of being a Marine and this made your bipolar worse, that you were young and made a mistake and regret it, and that you are ashamed of your service record.  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, even under the liberal consideration standard, the Board concluded that there was no credible and convincing evidence that you suffered from any type of PTSD or bipolar disorder while on active duty or that any such mental health conditions were related to or mitigated the misconduct that formed the basis of your discharge.  The Board also noted that larceny and forgery are intentional, premeditated conduct, and are not excused by any mental health condition.  Moreover, the Board observed that you did not submit any clinical documentation or post-service treatment records to support your mental health claims despite a request from the Board on 26 June 2019 to specifically provide additional documentary material.  Additionally, absent a material error or injustice, the Board generally will not summarily upgrade a discharge solely for the purpose of facilitating Department of Veterans Affairs benefits or enhancing educational or employment opportunities.  Accordingly, the Board determined that there was no probable material error or injustice in your discharge, and even under the liberal consideration standard, the Board concluded that your serious misconduct and disregard for good order and discipline 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 unanimously concluded that, despite your contentions, this is not a case warranting clemency.  The fact remains that you were properly convicted at a SPCM of serious misconduct, and the Board did not find any evidence of an error or injustice in this application that warrants upgrading your BCD. 

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 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,