DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 771-19 Ref: Signature Date This is in reference to your application of 17 December 2018 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 that 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 30 April 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, an Advisory Opinion (AO) from a mental health provider, and applicable statutes, regulations and policies. Regarding your request for a personal appearance, the Board determined that a personal appearance by you 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 this case based on the evidence of record. You enlisted in the Marine Corps on 4 November 1977. On 27 July 1978 you left your duty station without legal authority, justification, or excuse and went into an unauthorized absence (UA) status until 29 August 1978, a period lasting 33 days. You were issued straggler’s orders to report back to . However, you failed to comply with such orders and went into a UA status again on 31 August 1978. Your UA period ended on 16 November 1979, the day you were convicted of felony burglary in , . On such date, you were turned back over to military control. On 21 January 1980, you submitted a voluntary request for discharge under other than honorable conditions for the good of the service to avoid trial by court-martial for your two UA periods. However, the Commanding General, denied your request on 25 January 1980. On 13 March 1980, pursuant to your guilty pleas, you were convicted at a General Court Martial (GCM) of UA lasting 33 and 442 days, respectively, two specifications of assault with the intent to inflict grievous bodily harm, and two specifications of using provoking speeches or gestures. You received as punishment 23 months of confinement, reduction to the lowest enlisted rank, forfeitures of pay, and a discharge from the Marine Corps with a Bad Conduct Discharge (BCD). On 6 June 1980, the Convening Authority approved your sentence as adjudged. On 4 December 1980, the Naval Clemency and Parole Board (NCPB) reviewed your case and granted no clemency or parole. Following completion of the post-trial appellate review process in your case, your punitive discharge was ordered executed and you were ultimately discharged from the Marine Corps with a BCD on 28 August 1981. Your contention that you suffered from a mental health condition while on active duty 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, “Clarifying Guidance 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 mental health provider (MHP) also reviewed your request for correction and provided the Board an AO dated 20 August 2019. The MHP observed that you have current diagnoses of bipolar disorder, cannabis and alcohol use, but determined that there was insufficient information to attribute these diagnoses to your military service more than 25 years ago. The MHP also stated that there was no indication you were diagnosed with an in-service mental health condition. The MHP opined that there is insufficient information to attribute your misconduct to effects of drinking tainted water. The MHP also determined that even if you were experiencing a mental health condition in the face of the stress of a court-martial that it would be difficult to consider how your intentional criminal misconduct would be attributed to such mental health condition. The MHP concluded by opining that there was insufficient evidence to attribute your misconduct to a service-connected mental health condition. The Board carefully weighed all potentially mitigating factors, such your contentions that included, but were not limited to: (a) that you were suffering from the neurobehavioral effect of drinking tainted water at , (b) that you have paid the price for your actions, and (c) that you have been receiving some mental health treatment. 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 mental health issue 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. The Board concluded that, even under the liberal consideration standard, there was no probable material error or injustice in your discharge. 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 concluded that, despite your contentions, this is not a case warranting clemency. 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, 5/15/2020