Docket No: 7790-20
Ref: Signature Date                                                                                                      
Dear   
 
This is in reference to your application for correction of your naval record pursuant to Section 1552 of Title 10, United States Code.  After careful and conscientious consideration of relevant portions of your naval record and your application, the Board for Correction of Naval Records (Board) found the evidence submitted 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 21 December 2000.   The names and votes of the panel members 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 the 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, to include the Kurta Memo, the 3 September 2014 guidance from the Secretary of Defense regarding discharge upgrade requests by Veterans claiming post-traumatic stress disorder (PTSD) (Hagel Memo), and the 25 July 2018 guidance from the Under Secretary of Defense for Personnel and Readiness regarding equity, injustice, or clemency determinations (Wilkie Memo). 
 
The Board determined that your personal appearance, with or without counsel, would 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 and began a period of active duty on 28 November 2005.  On 26 October 2006, you received nonjudicial punishment (NJP) for stealing a Sony Laptop, PlayStation 2 and six video games, and for wrongfully entering the room belonging to another Marine with the intent to commit a criminal offense.  On 10 May 2007, you received a second NJP for failure to obey a lawful order by wrongfully sleeping on post.  On 27 March 2008, you were found guilty at summary court martial for a period of unauthorized absence (UA) from 24 to 25 March 2008, and for failure to obey a lawful order by wrongfully traveling a distance of 617 miles.  On 1 September 2008, you received a second summary court martial and were found guilty for failure to obey a lawful order by removing your PPE while standing post and falling asleep while standing post aboard .  On 18 February 2009, you received a third summary court martial and were found guilty of failure to appear at your appointed place of duty.  On 4 March 2009, you were notified of administrative separation proceedings against you; you waived your right to appear before an administrative separation board.  On 5 March 2009, Commanding Officer, 3d Battalion, 6th Marine Regiment recommended that you be separated on the basis of a pattern of misconduct and that you receive an other than honorable discharge.  On 16 June 2009, you were discharged from the Marine Corps on the basis of misconduct, and received an other than honorable discharge and a reentry (RE) code of RE-4.  Following your discharge, the Naval Discharge Review Board (NDRB) reviewed your service record in light of your contention of suffering from mental health issues, and in consideration of your request for an upgrade to your discharge characterization.  On 16 May 2017, NDRB notified you that it found the discharge proper as issued. 
 
In your application to the Board, you request an upgrade from an other than honorable discharge to an honorable characterization of service, and a change to your RE-4 reenlistment code.  You state that your discharge and RE-4 code are unjust because you were diagnosed with Post Traumatic Stress Disorder after your first deployment.  You also assert that you suffered a traumatic brain injury (TBI) while you were in the service, and you suffered from severe depression and nightmares from two combat deployments.  You note that you have not been able to obtain your medical records nor have you been able to get help.  You state that you served for four years in the Marine Corps and in the last few months of your enlistment, you were discarded for misconduct.  You contend that you have been in and out of hospitals and you are trying to piece your life back together but do not have the help you need.  You have provided character letters, which you contend vouch for your excellent character, strong work ethic, and your personal and professional growth.     
 
The Board noted that your application for correction raises a potential issue of a mental health condition due to your time in Iraq.  In a communication dated 2 December 2019, you were asked to provide additional medical or clinical evidence to support your claim.  When you did not provide additional evidence, your case was re-opened and processed for consideration by the Board. 
 
As part of the review process, a Licensed Clinical Psychologist reviewed your request and issued an Advisory Opinion dated 9 November 2020.  The Advisory Opinion noted that your available records do not contain evidence of a mental health condition, and throughout your military service, disciplinary actions, counselings, and administrative processing, there were no concerns noted of any indications of a mental health condition that resulted in referral to mental health resources.  Additionally, the Advisory Opinion considered that you did not submit any post-discharge information to support a clinical diagnosis of any mental health condition as rendered by a mental health practitioner.  The Advisory Opinion concluded by opining that the preponderance of available evidence fails to establish that you incurred PTSD or a TBI as a result of your military service that may have mitigated your misconduct.  The Advisory Opinion 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 carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in your case including in accordance with the Wilkie Memo, then Hagel Memo, and the Kurta Memo.  These included, but were not limited to your contention that you suffered from PTSD, depression, and nightmares from two deployments and that you incurred a TBI while in the Marine Corps.  The Board noted that the letter from your mother in support of your application states that you suffered a severe head injury in 2008 due to a car accident.  The Board noted that you did not provide medical or treatment information to support your contentions of TBI, PTSD and other mental health issues.  Absent such information, the Board concurred substantially with the analysis and conclusions of the Advisory Opinion, and determined there is insufficient evidence to support a finding that your misconduct was mitigated by a TBI, PTSD, or other mental health condition while you were in the Marine Corps.  The Board noted that you did serve overseas and earned the Iraq Campaign Medal (w/bronze service star), and that you completed 3 years, 4 months, and 28 days of active duty service in the Marine Corps.  Even taking into account your contributions to the Global War on Terrorism, the length of your enlistment, the statements submitted in support of your application, and your post-discharge struggles, the Board found that there is insufficient medical or treatment information to establish that your misconduct was mitigated by a mental health condition.  Accordingly, the Board relied on the two NJPs and three summary court martials in determining whether the other than honorable discharge was appropriate.  The Board found that in light of the frequency of your misconduct and in consideration of the nature of the infractions (to include stealing from a fellow Marine and sleeping while standing post in Iraq), the other than honorable discharge was issued without error or injustice.    
 
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,