Docket No: 6449-19
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.     
  
A three-member panel of the BCNR, sitting in executive session, considered your application on 30 November 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.  In addition, the Board considered the advisory opinion (AO) furnished by a qualified mental health professional dated 22 October 2020, which was previously provided to you. 
  
You enlisted in the Marine Corps and began a period of active duty on 24 October 1973.  During the period from 11 July 1974 to 20 March 1975, you received nonjudicial punishment (NJP) three times for sleeping on watch, larceny, wrongfully committing a nuisance, and being incapacitated for the performance of your duties.  Additionally, you were counseled regarding your growing number of infractions of rules and regulations, and warned that further disciplinary problems could result in being discharged by reason of unsuitability.  On 12 August 1975, you were counseled regarding your marginal performance.  On 12 September 1975 and 23 October 1975, you received NJP for two specifications of failing to report to your appointed place of duty, and wrongful appropriation from the Base Exchange.  You received two additional counseling warnings regarding being in possession of two identification cards and failing to prepare for a clothing inspection.  On 30 December 1975, you were notified of your personal deficiencies in your appearance.  On 11 February 1976, you received NJP for one day of unauthorized absence.  On 25 February 1976, you were counseled regarding your failure to comply with squadron orders on barracks watch.  On 26 February 1976, you were issued a letter of unsatisfactory performance.  On 8 October 1976, you received NJP for wrongful possession and use of marijuana, and resisting lawful apprehension.  On 14 October 1976, you were counseled regarding your marginal performance. 
  
On 17 November 1976, you were notified of administrative discharge by reason of misconduct due to frequent involvement of a discreditable nature with military authorities.  After being afforded you procedural rights, you elected to consult with counsel and to have your case heard before an administrative discharge board (ADB).  On 19 November 1976, before your ADB convened, your case was forwarded to the separation authority (SA) with a recommendation that you receive an undesirable discharge due to your frequent involvement with military authorities.  On 15 December 1976, an ADB convened and found that your record did reflect frequent involvement of a discreditable nature with military authorities, that such frequent involvement did constitute misconduct, and recommended you receive an undesirable discharge.  On 9 January 1977, a staff judge advocate found your case to be sufficient in law and fact, and on 11 January 1977, the SA approved the ADB’s recommendation and directed that you receive an other than honorable (OTH) discharge by reason of misconduct based on your frequent involvement of discreditable nature with military authorities.  On 25 January 1977, you were discharged from the Marine Corps with an OTH characterization of service. 
 
Your request was fully and carefully considered by the Board in light of 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. 
 
A qualified mental health professional reviewed your request for correction to your record and provided the Board with an AO regarding your assertion that you were suffering from a mental health condition during your service.  The AO noted that although you contend you have a post-discharge diagnosis of a mental health condition, the preponderance of available objective evidence fails to establish you suffered from a mental health condition at the time of your military service, or that your in-service misconduct could be attributed to a mental health condition. 
 
The Board carefully weighed all potentially mitigating factors, such as your record of service and desire to upgrade your discharge.  The Board also considered your assertions that you served honorably, but had difficulties because of your undiagnosed metal health disabilities and inability to communicate because English was not your first language.  Further, you assert that you did not request a discharge and wanted to stay in the service, and that you want an upgrade to help you get the necessary mental health treatment, in order to live a productive life and to end your homelessness.  The Board concluded these factors and assertions were not sufficient to warrant changing your characterization of service given your misconduct, which resulted in seven NJPs, and the fact that you were counseled on more than one occasion of the consequences of further misconduct.  Further, the Board concurred with the AO in that the preponderance of available objective evidence fails to establish you suffered from a mental health condition at the time of your military service, or that your in-service misconduct could be attributed to a mental health condition. 
 
In reviewing your separation and characterization of service, the Board considered the totality of the circumstances to determine whether relief is appropriate today in the interests of justice in accordance with guidance provided by the Under Secretary of Defense for Personnel and Readiness (Wilkie Memo of 25 July 2018).    However, even in light of the USD Memo, the Board still concluded 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,