DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 837-19 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 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 12 May 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, relevant portions of your naval record, and applicable statutes, regulations, and policies. In addition, the Board considered the advisory opinion (AO) furnished by a Navy mental health professional dated 30 September 2019, which was previously provided to you. You enlisted in the Marine Corps and began a period of active duty on 8 April 1981. On 1 September 1981, and 8 March 1983, you received nonjudicial punishment (NJP) for wrongfully disposing of a fire extinguisher, two instances of assault, and escaping from custody. On 10 May 1983, you were counseled concerning your frequent involvement with military authorities, and warned that further infractions, could result in administrative discharge action. On 8 July and 25 August 1983, you received NJP for wrongful use of marijuana, possession of marijuana paraphernalia, breaking restriction, and two hours of unauthorized absence. Your original service record is incomplete and does not contain any documentation pertaining to your separation from the Marine Corps. Based on your Certificate of Release of Discharge from Active Duty (DD Form 214), on 21 September 1983, you were discharged from the Marine Corps with an other than honorable characterization of service for misconduct due to drug abuse. You submitted a statement with your application that you were discharged for alleged abuse of marijuana from a fallible drug test. You stated that while on restriction from marijuana use, you broke restriction to check on your newlywed wife, who you feared might had been the victim of rape. Upon your return from your visit to your wife, you threatened to cause an explosion, which resulted in your discharge. You further stated that you suffer from PTSD from boot camp experiences, and that additional records are not available for review, as you are currently, incarcerated for the murder of your brother. The Board noted that you provided no evidence to support your contentions. Absent such evidence, the Board relied upon the presumption of regularity and presumed that the officials acted in accordance with governing law and policy. Your request 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 professional reviewed your request for correction to your record and provided the Board with an AO regarding your assertion that you were suffering from PTSD during your service. The AO noted that you have submitted no medical documentation of a mental health diagnosis incurred during military service. The AO concluded that there is insufficient evidence to attribute your misconduct to a mental health condition suffered during military service. The Board carefully weighed all potentially mitigating factors, such as your record of service, and desire to upgrade your discharge. The Board also consider your assertions that you were an alcohol and drug counselor, a family group counselor (retired), and the laws concerning marijuana use have become less stringent. Additionally, the Board considered that marijuana has been found to have medical benefits, that you have been diagnosed as suffering several of those ailments, which it benefits, such as PTSD by the Social Security Administration, resulting from your Marine Corps boot camp experiences, and experiences prior to your enlistment. Further, you contend that you have been punished beyond NJP standards, as if it was a capital offense, when it was not, and that you were denied effective assistance of counsel at your NJP hearing. The Board concluded these factors and assertions were not sufficient to warrant changing your characterization of service given your misconduct, which resulted in four NJPs, and the fact that you were counseled and warned of the consequences of further misconduct after your second NJP. Further, the Board concurred with the AO’s statement that there is insufficient evidence to attribute your misconduct to a mental health condition suffered during military service. Regarding your contention that you were denied effective assistance of counsel at your NJP hearing, based on your DD 214, during your administrative processing you expressly waived your right to consult with counsel, and waived your right to have your case heard before an administrative discharge board, and thereby forfeited your best opportunity to receive a better characterization of service. 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, 7/10/2020