Docket No: 6264-19
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 for Correction of Naval Records, sitting in executive session, considered your application on 21 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, and 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 their 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 on 27 April 1972.  On 12 September 1972 you received non-judicial punishment (NJP) for unauthorized absence (UA) lasting two days that was terminated by your arrest.  On 29 November 1972 you received NJP for UA lasting fifteen days.  On 21 December 1972 you received NJP for UA for failing to go to your appointed place of duty.  On 10 February 1973, you received NJP for insubordinate conduct and disrespectful language toward a non-commissioned officer. 
 
On 29 September 1973, pursuant to your guilty pleas, you were convicted at a Special Court-Martial (SPCM) of UA lasting ten days and for false swearing.  You were sentenced to forfeitures of pay, hard labor without confinement, and restriction.  Ten days following your SPCM, you commenced a period of UA lasting ninety-one days that ended on 8 January 1974.  On 19 February 1974, pursuant to your guilty plea, you were found guilty and convicted at a SPCM of your 91-day UA.  As punishment you received suspended confinement and forfeitures, and restriction for forty-five days.  On 7 June 1974 you commenced another UA period lasting forty-eight days ending on 25 July 1974.  On 28 August 1974 you received NJP for riding in an automobile while doing the running portion of the physical fitness test. 
 
On 1 October 1974 you were provided notice that you were being administratively processed for separation from the Marine Corps by reason of unfitness due to frequent involvement with military authorities.  You elected to waive your rights to consult with counsel and to request an administrative separation board.  In the interim, on 1 November 1974 you underwent a separation physical and the medical officer did not note any psychiatric or neurologic abnormalities and/or symptoms.  Ultimately, on 6 November 1974 you were discharged from the Marine Corps for unfitness with an other than honorable conditions (OTH) characterization of service and assigned an RE-4 reentry code.   
 
Your contention that you suffered from a mental health condition on active duty 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 as your contentions that included, but were not limited to the following:  (a) you were targeted, abused, bullied, and treated unfairly by several of your drill instructors during initial recruit training, (b) while on active duty you began to suffer from an undiagnosed, misdiagnosed, or untreated mental health condition, including post-traumatic stress disorder (PTSD) and that you were discharged for reasons related to this condition, (c) you have made several attempts throughout the years to obtain help on this matter but were continually turned away by the VA, (d) your side of the story has never been given a chance to be heard, and (e) your military records should support the incidents mentioned.  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 convincing evidence that you suffered from any type of mental health condition while on active duty, or that any such mental health condition was related to or mitigated the misconduct that formed the basis of your discharge.  As a result, the Board concluded that your pattern of misconduct was not due to mental health-related symptoms.  The Board observed that the only mental health-related document you tendered was a two-sentence letter dated 4 June 2019 from a psychologist who had been treating you for just the last five weeks starting in April 2019 whose initial impression was that your PTSD “is at least as likely as not” due to your USMC experiences.  The Board determined that this was insufficient in light of the fact that it has been over forty-four years since your discharge and you provided no other substantive medical or clinical documentation to support your mental health claims despite a request from BCNR on 26 August 2019 to specifically provide additional documentary material.  The Board also observed that there is no evidence in your service or medical record to corroborate or substantiate any allegations of bullying, abuse, targeting, or harassment by your drill instructors.  The Board additionally noted that your overall active duty trait average during your enlistment was 1.67 in conduct.  Marine Corps regulations in place at the time of your discharge required a minimum trait average of 4.0 in conduct (proper military behavior), for a fully honorable characterization of service.  The Board concluded that your conduct marks during your active duty career were a direct result of your pattern of misconduct.   
 
In addition, the Board noted the record shows you were notified of and waived your procedural rights in connection with your administrative separation.  In doing so, you gave up your first and best opportunity to advocate for retention or a more favorable characterization of service.  It is important to note that there is no provision of federal law or in Navy/Marine Corps regulations that allows for a discharge to be automatically upgraded after a specified period of time.  Lastly, absent a material error or injustice, the Board generally will not summarily upgrade a discharge solely for the purpose of facilitating VA benefits, or enhancing educational or employment opportunities.  Accordingly, the Board determined that there was no impropriety or inequity in your discharge, and even under the liberal consideration standard, the Board concluded that the misconduct detailed in your record merited your receipt of an OTH discharge. 
 
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 and your pattern of misconduct, 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,