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

Docket No. 7715-19 
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 case on its merits. A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 7 November 2019. 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.

A review of your record shows that you entered active duty with the Marine Corps in June 1996. You deployed to Afghanistan in September 2010 until March 2011 during which you developed Post-Traumatic Stress Disorder (PTSD). You underwent treatment for PTSD and alcohol abuse later in 2012 and continued therapy sessions through early 2013. However, you were convicted by a summary court-martial on 22 March 2013 for attempting to possess a controlled substance and soliciting another to distribute a controlled substance resulting in your reduction to paygrade E-6. On 5 June 2013, you were found to be drunk on duty and made a false official statement when questioned. Based on your misconduct, special court-martial charges were preferred on 5 August 2013. You submitted a request to be separated in lieu of trial by court-martial on 12 September 2013 that was approved by Commanding General, I Marine Expeditionary Force on 29 October 2013. Based on your request, you were discharged from the Marine Corps on 20 November 2013 with an Other than Honorable characterization of service.

The Board carefully considered your arguments that you deserve to be placed on the disability retirement list. You assert that you were wrongfully convicted by the summary court-martial and was suffering from PTSD and substance abuse when you committed the misconduct that led to your administrative separation in lieu of trial by court-martial.  Unfortunately, the Board disagreed with your rationale for relief. Despite applying liberal consideration to the circumstances of your case, the Board concluded the preponderance of the evidence does not support your placement on the disability retirement list. First, despite your mental health diagnosis, the Board concluded you were mentally responsible for the misconduct that formed the basis for your administrative separation since there was no evidence to support a finding you were incapable of discerning the nature of your actions.  Since you were criminally responsible for your misconduct, the Board determined you were properly preferred to a special court-martial and administratively processed for administrative separation upon submission of your 12 September 2013 request to be administratively separated. Second, based on the finding that you were criminally responsible for your misconduct on 5 June 2013 and properly processed for administrative separation, the Board also concluded that you were ineligible for disability processing based on disability regulations that dictate misconduct processing supersedes disability processing.  Third, regardless of whether you were eligible for disability processing, the Board found insufficient evidence that you were unfit for continued naval service at the time of your discharge. In order for a service member to qualify for placement on the disability retirement list, there must be sufficient evidence to support a finding that the member is unable to perform the duties of their office, grade, rank or rating due to a qualifying disability condition. In your case, you were diagnosed with PTSD but the Board found insufficient evidence of unfitness based on fitness reports ending on 31 January 2013 and 2 April 2013 that documented your performance at fleet standards for your paygrade. Your review officer comments in your April 2013 fitness report indicate your performance, other than your misconduct, was otherwise consistent with a senior non-commissioned officer. This evidence combined with January 2013 medical reports which document that your PTSD and alcohol symptoms were in partial remission convinced the Board they lacked sufficient evidence of unfitness to support a finding that you were unable to perform the duties of your office, grade, rank or rating due to a disability condition. Fourth, the Board considered your documented superior performance and good military character to determine whether sufficient injustice exists to merit placing you on the disability retirement list. In the end, despite applying liberal consideration, the Board felt your narrative reason for separation remains appropriate. They reached this conclusion based on their determination that you already received the benefit of a great bargain when the Marine Corps agreed to administratively separate you in lieu of trial by special court-martial. Based on your previous drug related summary court-martial conviction, the Board felt you likely escaped a punitive discharge when the Marine Corps accepted your request to be administratively separated. In their opinion, the benefit you already received greatly reduced or eliminated any injustice based on the circumstances of your case. Additionally, they also concluded the misconduct you committed while on active duty was too serious to be offset by the mitigation offered by your mental health condition. Not withstanding your unsubstantiated allegations of erroneous conviction, the drug offenses for which you were found guilty were sufficient to support an Other than Honorable characterization of service without consideration of your 5 June 2013 misconduct.  When considered in total, the Board concluded your misconduct likely merited a punitive discharge and could not be sufficiently offset by the mitigation evidence in your record to allow the Board to place you on the disability retirement list. Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to your record.

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 issue(s) involved. Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record.

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,