Docket No. 8184-19
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 application on its merits.  A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 4 September 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. 
 
You enlisted in the Marine Corps on 9 January 2001.  On 30 August 2001 you received non-judicial punishment (NJP) for misbehavior of a sentinel by sleeping on post.  The same day you received a “Page 11” counseling warning (Page 11) documenting your NJP and warning you that a failure to take corrective action may result in disciplinary action and in processing for administrative separation.  On 9 September 2002, you received NJP for unauthorized absence (UA).  You were issued another Page 11 documenting your NJP and warning you that a failure to take corrective action may result in disciplinary action and in processing for administrative separation.  On 13 November 2002 you received NJP for the wrongful appropriation of “782 gear” from two other Marines.  You did not appeal your punishment.  You were issued another Page 11 documenting your NJP and warning you that a failure to take corrective action may result in disciplinary action and in processing for administrative separation.  However, on 2 July 2003 you received NJP for four specifications of UA.  
  
On 2 July 2003, you were provided notice that you were being administratively processed for separation from the Marine Corps by reason of misconduct due to a pattern of misconduct.  You consulted with counsel and expressly waived your right to request an administrative separation board.  Ultimately, on 25 September 2003 you were discharged from the Marine Corps for a pattern of misconduct with an other than honorable (OTH) characterization of service and assigned an RE-4 reentry code.  On 5 October 2006, the Naval Discharge Review Board determined that your discharge was proper and that no change was warranted.   
 
The Board observed that you submitted limited post-service medical records from 2005 and 2013 indicating you suffer from mental health conditions.  Your mental health conditions were fully and carefully considered by the Board in light of the guidance provided by 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.  
 
The Board carefully weighed all potentially mitigating factors, such as your contentions that included, but were not limited to:  (a) you were falsely accused of theft, (b) you had 3 NJPs during active duty and you know a couple of soldiers that got them are still in, and (c) you should not be punished in your civilian life for false accusations, which keep you from getting benefits you deserve.  However, 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 convincing evidence that you suffered from any type of mental health condition 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.  As a result, the Board concluded that your misconduct was not due to mental health-related symptoms.   
 
The Board also noted, contrary to your contentions that you were falsely accused, you were found guilty at NJP of wrongful appropriation and that you did not contest such findings on appeal.  Additionally, the Board noted the record shows you were notified of and expressly waived in writing your procedural rights in connection with your administrative separation.  In doing so, you gave up your first and best opportunity to advocate for retention or a more favorable characterization of service.  Lastly, absent a material error or injustice, the Board generally will not summarily upgrade a discharge solely for the purpose of facilitating VA benefits, or enhancing educational or employment opportunities.  Accordingly, the Board determined that there was no impropriety or inequity in your discharge, and concluded that your serious misconduct and disregard for good order and discipline clearly merited your receipt of an OTH discharge. 
 
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 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,