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.      
 
A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 25 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 and personal statement, 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 18 July 2011.  On 19 July 2013 you were issued a “Page 11” counseling warning (Page 11) for being absent at morning formation and for giving a false statement and jeopardizing your integrity to your NCOs and SNCOs.  The Page 11 warned you that a failure to take corrective action and any further violations of the Uniform Code of Military Justice may result in administrative separation.  On 5 March 2014 your commenced a period of unauthorized absence (UA).  You remained in a UA status for 379 days until 18 March 2015 when you finally surrendered to military authorities. 
 
Unfortunately, your administrative separation (adsep) documents are not in your electronic service record.  However, based on the information contained on your Certificate of Release or Discharge from Active Duty (DD-214), it is evident that you submitted a voluntary written request for a discharge for the good of the service in lieu of trial by court-martial for a UA period lasting approximately 379 days.  In block 29, your DD-214 notes “TL” (Time Lost) for the period 5 March 2014 through 17 March 2015, which roughly corresponds with your documented UA period.  Time Lost describes periods on active duty spent either in a UA status or while serving in military confinement.  Prior to submitting this voluntary discharge request, you would have conferred with a qualified military lawyer, at which time you were advised of your rights and warned of the probable adverse consequences of accepting such a discharge.  As a result of this course of action, you were spared the stigma of a court-martial conviction for your long-term UA, as well as the potential sentence of confinement and the negative ramifications of receiving a punitive discharge from a military judge.   
 
At your separation physical on 31 March 2015, the medical officer noted no neurological or psychiatric abnormalities and/or symptoms.  Ultimately, on 19 May 2015 you were separated from the Marine Corps with an other than honorable (OTH) discharge.  The Board noted that on your DD-214, the narrative reason for separation is “In Lieu of Trial by Court Martial” (ILTCM), and your separation code is “KFS1,” which corresponds to a Marine Corps ILTCM adsep.    
 
Your contention that you suffered from military sexual trauma (MST) due to a sexual assault on active duty was 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 contention that you had PTSD due to MST.  Unfortunately, the Board determined that this contention and mitigating factor and was not supported by the record or 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, the Board concluded that there was no nexus between any PTSD due to MST and/or PTSD-related symptoms and your misconduct, and determined that there was insufficient evidence to support the argument that any such mental health condition mitigated the misconduct that formed the basis of your discharge.  Even under the liberal consideration standard, the Board concluded that your misconduct was not due to PTSD or PTSD/MST-related symptoms. 
 
The Board also determined that, although one’s service is generally characterized at the time of discharge based on performance and conduct throughout the entire enlistment, the conduct or performance of duty reflected by only one incident of misconduct may provide the underlying basis for discharge characterization.  The Board also noted that the evidence of record did not demonstrate that you were not responsible for your conduct or that you should not be held accountable for your actions.  Additionally, 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 even under the liberal consideration standard, the Board concluded that the misconduct reflected in your record supported receipt of an OTH discharge. 
 
The Board also 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, including negative post-service conduct, such as any arrests, criminal charges, or any convictions.  Accordingly, even in light of the USD Memo, the Board still concluded that, given the totality of the circumstances, your request does support a grant of clemency.   
 
Finally, despite the fact that your adsep records were not in your service record, the Board relies on a presumption of regularity to support the official actions of public officials.  In the absence of substantial evidence to rebut the presumption, to include evidence submitted by the Petitioner, the Board presumes that you were properly processed for separation and discharged from the Marine Corps.  In the end, the Board concluded that you received the correct discharge characterization based on your circumstances, and that such OTH characterization was in accordance with all Department of the Navy directives and policy at the time of your discharge. 
 
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,