DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 7424-19 Ref: Signature Date Dear : This letter is in reference to your reconsideration request. You previously petitioned the Board for Correction of Naval Records (Board) and were advised that your application had been denied. 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 relevant portions of your naval record and your application, 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 16 June 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 its 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 United States Marine Corps and started a period of active duty on 29 May 1981. During your first enlistment, you had three nonjudicial punishments (NJP) for various infractions including absence from your appointed place of duty, wrongful use of a controlled substance (marijuana), and disobedience of a lawful written order (having alcohol beverage in the barracks). You were discharged from the Marine Corps on 29 July 1984, on the basis of minor disciplinary infractions; an administrative separation board was required but you waived your right to appear before an administrative separation board. You received an other than honorable (OTH) characterization of service and a reentry (RE) code of RE-4. Following your 1984 discharge, you sought re-enlistment in the Marine Corps. During the re-enlistment process you did not disclose your previous service in the Marine Corps and stated on a security questionnaire that you did not have any prior military service. You began a second period of active duty on 29 May 1985. On 18 December 1985, you received NJP for a period of unauthorized absence (UA) from 15 to 16 December 1985. In June 1986, you received a psychological evaluation and were diagnosed with passive aggressive personality disorder and possible sleepwalking. On 30 June 1987, you were convicted at special court martial (SPCM) proceedings of two periods of UA (from 20 December 1985 to 8 April 1986, and from 2 July 1986 to 3 February 1987, for a total of 327 days). The Court sentenced you to confinement for 45 days, forfeiture of $900 pay, reduction in rank, and a bad conduct discharge (BCD). On 28 June 1988, you were discharged from the Marine Corps with a BCD. In March 1997, you petitioned the Naval Discharge Review Board (NDRB) for an upgrade to your discharge. NDRB reviewed the OTH discharge received for your first period of service from 29 May 1981 to 29 June 1984, and determined that the OTH discharge characterization was proper as issued. In 1998, you applied to the Board for an upgrade to your discharge characterization (NR19980006823). The Board found your discharge proper as issued and denied your request. You again applied to the Board in 2003, for correction to your record (NR20030003036). As part of the review process for your 2003 petition, an Advisory Opinion (AO) dated 27 April 2004, was obtained from Naval Medical Center, Portsmouth, to determine whether you should be granted a medical discharge from the Marine Corps. The AO opined that there was insufficient evidence to justify changing your diagnosis or RE code. The 2004 AO was provided to you, and you submitted a rebuttal in which you stated, in part, that after your discharge from the Marine Corps, you were homeless and lived shelter to shelter on the streets of Your family found you and moved you to , but could not deal with your mental illness. You were unable to keep a job and were taken in by . The Board considered your 2003 request, but substantially concurred with the AO and denied your petition. In 2006, you again petitioned the Board (NR20060001303, NR20060006843 and NR20060008050); the Board either denied the request for correction or administratively closed your case after disapproving your request for reconsideration of the previous decisions. You petitioned the Board in 2009 (NR2009003863 and NR20090005707); you were again denied reconsideration. In 2014, pursuant to the order of the Board considered your case on remand and denied relief. In , the again remanded your case to the Board to determine the merits of your claim for disability retirement benefits (NR20160005702). The Board obtained an AO, dated 11 October 2016, to which you provided a rebuttal. The Board denied your request for disability benefits or retirement. On , the again remanded your case to the Board (NR20170004899). Pursuant to the Court order, the Board obtained an AO from a clinical psychologist, dated 13 October 2017. The Board again denied relief. You submitted a request for reconsideration in July 2019 (NR20190007424, current petition); separately, you named the Board in October 2019 filings before the . In your current request for reconsideration, you seek an upgrade to your discharge characterization to reflect an honorable discharge, restoration to the rank of lance corporal, an upgrade/advancement to the rank of gunnery sergeant (E-7) or any rank you could make, and military disability retirement. You contend that you suffered from undiagnosed mental illness while in the Marine Corps, diagnosed sleepwalking and bed wetting, Post Traumatic Stress Disorder (PTSD), and schizoaffective (depression/disorder), and Traumatic Brain Injury (TBI). You state that you were diagnosed with PTSD post-discharge and assert that your mental health condition mitigates the misconduct that led to your BCD. You presented the following questions: (1) Is denying you the right to use Pacer a violation of your due process rights? You ask for access to the Electronic Docket Report or Pacer so that you are able to file motions in a timely manner. You assert that your request was denied by a District Court judge, causing you to miss the deadline to file an answer to a motion. You request exemption from all fees. (2) Did the Board violate your right to due process when “they punished” you for a “false positive urinalysis;” (3) Were your constitutional rights violated when the judge used an incomplete AO furnished by the Board; (4) Did the Board violate the Goldwater Act when using an incomplete history of mental illness; (5) Were your constitutional rights violated when you were sent to talk to an attorney and were unable to form an attorney-client privilege, and (6) Were your constitutional rights violated when you were made to take a urinalysis that was not ready to be used for punishment? You also assert that the AO considered by the previous Board did not include a review of a letter from your mother and father detailing circumstances of childhood PTSD. In your current application you again submit communications from your parents and provide information about your youth prior to enlisting in the Marine Corps. In your personal statement to the Board, you assert that while you were young you suffered physical abuse at the hands of your father, received psychological treatment for a year, successfully graduated from high school, and went to Shaw University. After losing your financial aid due to budget cuts, you joined the Marine Corps. You claim that you were doing fine in boot camp until your Drill Instructor came to the barracks intoxicated, and beat and kicked you. You state that you were recycled for not being motivated and contend that you were suffering from depression. When you state that when you got to another platoon, you excelled and graduated. You were subsequently sent to which you state was classified as a combat zone. You contend that you were “constantly under attack by ” and that your team suffered 20 injured and 2 deaths. You state that you became depressed, and you detail information about retrieving dead bodies from a hurricane. While stationed in you worked 18 months without a day off. You assert that you were given a urinalysis that resulted in a “false positive” which resulted in you being wrongly found guilty. You detail being anxious all the time, drinking daily, and receiving a DWI (driving while intoxicated). You were sent to a locked ward to dry out for 30 days, during which time you were subjected to routine urinalysis and never came up positive. You assert that you started sleepwalking and were sent to the base Flight Surgeon who recommended a medical disability retirement. You contend that your final infraction was being written up for having an unopened bottle of alcohol while waiting for your ride into town, and you were subsequently discharged with an OTH. You had to sell everything to get home and that when you arrived your father threw you out. You re-entered the Marne Corps and ultimately received a BCD. You state that you were homeless for 20 years and struggled with alcoholism. Since your discharge, you have achieved numerous accomplishments to include furthering your education through participating in the. You provide numerous exhibits in support of your current request, to include information and communication from Veterans Affairs (VA), which you state, confirms childhood PTSD. Communications from the VA describe you as “ ” when you committed your offenses, which you indicate mitigates your culpability for your inservice misconduct. You also assert that your rights were violated by the . The Board noted that you claim that you suffered from PTSD (to include childhood PTSD), depression, TBI, schizoaffective disorder, and that you assert were experiencing undiagnosed mental health conditions at the time of your military service. The Board also considered the VA’s statement regarding your mental state while you were in the Marine Corps. Your assertions of mental health/PTSD/TBI/mental state as mitigating factors were reviewed by the Board and your request was fully and carefully considered in light of the Secretary of Defense’s Memorandum, “Supplemental Guidance to MilitaryBoards 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 MilitaryDischarge Review Board and Boards for Correction of ilitary/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 also reviewed your petition in consideration of the Under Secretary of Defense’s memorandum, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations”of 25 July 2018. As part of the review process for your current application, an AO was issued on 25 March 2020. The March 2020 AO noted that you were diagnosed with PTSD post discharge and that you assert this diagnosis mitigated the misconduct that led to the BCD. Additionally, the AO noted the issuance of an earlier AO dated 5 June 2017, from the Navy, Council of Review Boards, in which your request for a medical retirement for the diagnoses of PTSD and schizoaffective disorder (SD) and your contention that your behavioral infractions leading to your unfavorable discharge represented service aggravation from side effects to Amitriptyline were both reviewed. The AO stated that a review of the available service records revealed enlistment physical examinations in May 1981 and May 1985 that were negative for any history of mental conditions or substance abuse. The in-service medical records revealed a 27 March 1984 letter from Command Flight Surgeon to the Commanding Officer documenting unsuccessful treatment for somnambulism and enuresis with the antidepressant Elavil, and recommended a “Good of the Service” discharge. The AO also noted that the VA issued correspondence dated 22 March 2014, rendering a decision that for VA purposes you were determined to be “insane at the time in question” during which you committed misconduct (first and second enlistment). The March 2020 AO considered that the VA determined your first enlistment honorable, but your second enlistment dishonorable for VA purposes; you hold a 100% service-connected disability rating. The AO concluded that even in consideration of your post-discharge diagnoses and the VA’s correspondence regarding insanity, there is no evidence presented from your military service that you were not responsible for your actions. Additionally the AO found that based on the available evidence, it is as likely as not that you experienced in-service traumatic events exacerbating a pre-service PTSD condition. However, it is less likely than not that your in-service misconduct could be attributed primarily to a mental health condition [PTSD]. The AO was provided to you, and you were given 30 days in which to submit a response. When you did not provide a response within the 30 day timeframe, your case was submitted to the Board for consideration. The Board, in its review of your entire record and current application with the exhibits you submitted in support of your request, carefully weighed all potentially mitigating factors, including your contention that you were suffering from mental health conditions resultant from pre-service trauma and in-service events and exacerbation. The Board also noted that your current application revisits many of the issues, which have been previously denied by the Board. The current Board considered that the most recent Board decision for NR20170004899 substantially concurred with the AO of the Senior Medical Advisor, Secretary of the Navy Council of Review Boards and denied your request for disability benefits or a retirement from the military due to unfitness for continued naval service based on PTSD and SD. The current Board noted that the March 2020 AO acknowledged the VA’s diagnosis of PTSD due to physical assault by a drill instructor during boot camp and collecting dead bodies post-hurricane while stationed in Puerto Rico, as well as TBI stemming from physical assault in boot camp and a bicycle accident. The current Board also noted that the March 2020 AO weighed the medical opinions you provided which support your contention that your mental health conditions were exacerbated during your military service. The current Board, however, substantially concurred with the March 2020 AO’s determination that while it is as likely as not that you experience in-service traumatic events which exacerbated a pre-service PTSD condition, it is less likely than not that your in-service misconduct could be attributed primarily to a mental health condition. The Board weighed the nature and frequency of your misconduct in your first enlistment, followed by your failure to disclose your previous military service during the re-enlistment process for your second period of enlistment. The Board considered the VA’s contention that you were “insane” at the time ofyour misconduct, but noted that although the VA’s contention is probative on your mental state, the VA’s opinion is not dispositive on the Board for purposes of determining your culpability for your misconduct since it is an opinion used exclusively for determining VA eligibility. The Board found that the seriousness, frequency and nature of your misconduct you exhibited in your first enlistment (three NJPs and an arrest by civilian authorities for DWI) combined with the March 2020 AO’s finding that it is less likely than that not that your in-service misconduct could be attributed primarily to a mental health condition, supported the OTH discharge for your first enlistment. Accordingly, the Board found that your OTH characterization of service for the period of active duty ending on 29 July 1984, was issued without error or injustice and does not merit corrective action. With respect to your second period of enlistment, the Board again found that the seriousness, frequency and nature of your misconduct (failing to disclose your first period of OTH duty with the Marine Corps, your December 1985 NJP, and the June 1987 SPCM conviction for a UAs totaling over 300 days) combined with the March 2020 AO’s conclusions, supported the BCD foryour second enlistment. Accordingly, the Board found that even in light of your contentions regarding your mental health struggles, that the misconduct was not mitigated and an upgrade to your discharge characterization was not warranted. The Board noted that you were represented by counsel during the SPCM proceedings, that your mental state as it related to your responsibility for your actions does not appear to have been raised before the court, and that you were found guilty and sentenced to a BCD. Furthermore, the judicial proceedings received appropriate post-trial review. The Board again concluded that your BCD was issued without error or injustice and does not merit an upgrade. With respect to the questions you presented to the Board, the Board noted that a determination regarding the use of Pacer, its denial to you by a federal civilian court, and the exemption of all fees is beyond the scope of the Board’s authority as the determination does not pertain to the correction of your military record. Specifically, the Board is limited to making determinations on the correction of military records pursuant to SECNAVINST 5420.193, which establishes the procedures for making application and the consideration of applications for correction of military records of current and former members of the Navy and Marine Corps by the Secretary of the Navy acting through the Board under title 10, U.S. Code § 1552. Accordingly, the Board declined to issue a determination on your allegation that you were wrongfully denied the use of Pace, that you should have access to the Electronic Docket Report or Pace, and your request for exemption from all fees. The Board considered your request for a determination on your allegation that you were punished for a false positive urinalysis. The Board noted that you were found guilty of wrongful use of a controlled substance (marijuana) at NJP held on 17 May 1983. The Board considered your contention and took into account the information and articles you provides regarding flaws in the military’s urinalysis program. TheBoard also weighed your statement that you did not test positive for a controlled substance during regular and routine urinalysis. The Board found, however, that your assertions and the information your provided is insufficient to establish, by a preponderance of evidence, that the urinalysis which led to your NJP was inaccurate or flawed. Accordingly, the Board determined that the NJP for wrongful use of a controlled substance should remain in your record, that your command’s reliance in part on that NJP was appropriate with recommending you for an OTH discharge. With regard to your request for a determination on a possible violation of your constitutional rights when a judge used an “incomplete” AO furnished by the Board, theBoard again noted that determinations regarding the actions of a civilian court and/or a civilian judge are beyond the scope of its authority under SECNAVINST 5420.193. With respect to the Board’s consideration of AOs, the Board noted that the most recent Board, NR20170004899, appears to have been convened to allow the Board to consider an AO from a clinical psychologist or psychiatrist as required by 10 U.S. Code § 1552(g). With respect to the current Board’s consideration of the March 2020 AO, y The Board considered your question regarding the violation of the Goldwater Act, and found that the Board properly considered the request for correction to your military record as initiated by you through the submission of a DD Form 149. Furthermore, the Board considered mental health information in your available service record, and post-discharge medical information provided by you to the Board. The Board concluded that your allegation of a violation of the Goldwater Act is without standing or merit. The Board noted your request for a determination on a possible violation of your rights when you were sent to talk to an attorney with whom you were unable to form an attorney-client relationship resulting in attorney-client privilege. The Board reviewed the administrative and judicial actions in your record and determined that the record does not reflect a wrongful denial of counsel during NJPs, the administrative separation proceedings, or your SPCM. The Board found that you did not provide sufficient evidence to support an allegation or a determination that you were wrongfully denied counsel by the DoN during either your first or second enlistment. With respect to your question regarding your constitutional rights being violated when you were made to take a urinalysis that was not ready to be used for punishment, the Board considered your statement that you were subjected to routine urinalysis while you were receiving alcohol abuse treatment, and noted that your NJP for wrongful use of marijuana appears to have been the result of a command-executed urinalysis. The Board found that you did not provide sufficient evidence to support an allegation or a determination, by a preponderance of the evidence, that the DoN wrongfully violated your rights by executing an unlawful urinalysis while you were on active duty in the Marine Corps. The Board again concluded that the misconduct reflected in your record during both your first and second enlistments was not mitigated by a mental health condition because there is insufficient evidence to establish that any of your mental health conditions were the primary cause of your misconduct while you were on active duty. The Board weighed the seriousness and nature of your misconduct, applied the current guidance for mitigation of misconduct, and took into account the conclusions of the March 2020 AO when it determined that an upgrade to either your OTH discharge (1984) or your BCD (1988), is not warranted. Furthermore, the Board found that your misconduct and subsequent administrative and judicial proceedings (including your June 1987 SPCM which sentenced you to a reduction in rank to E-1) supported your loss of rank and that reinstatement to the grade of lance corporal or higher is not warranted. Finally, with regard to your request for a military disability retirement, the Board substantially concurred with the previous Board decision as articulated NR20170004899. The current Board found that even in light of your contentions of suffering from mental health conditions which impacted your ability to comply with expected standards of conduct, that your misconduct was found not to have been mitigated by any of your in-service mental health struggles, to include childhood PTSD and TBI. Under SECNAVINST 1850.4 series, processing for misconduct take precedence over processing for disability. Therefore, even in consideration of your assertion of suffering from mental health conditions while in the Marine Corps, the Board found that your misconduct, as evidenced by your multiple NJPs and SPCM conviction, was an appropriate basis for your administrative discharge in 1984 and your separation due to a court martial conviction in 1988. The Board concluded that you were properly discharged on the basis of misconduct for both periods of service, and that a medical discharge or disability retirement is not warranted for either period of your active duty service. 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,