Docket No: 8479-19
Ref: Signature Date                         

MR 
 
Dear Mr.  
 
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 you did not file your application in a timely manner, the statute of limitation was waived in accordance with the 25 August 2017 guidance from the Office of the Under Secretary of Defense for Personnel and Readiness (Kurta Memo).  A three-member panel of the Board, sitting in executive session, considered your application on 22 January 2021.  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 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, 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 also considered an advisory opinion (AO) from a qualified mental health professional dated 25 November 2020, which was previously provided to you.   
 
The Board determined your personal appearance, with or without counsel, would not materially add to their understanding of the issues involved.  Therefore, the Board determined a personal appearance was not necessary and considered your case based on the evidence of record. 
 
You enlisted in the Marine Corps on 13 September 2010.  From 30 April 2012 to 14 September 2012, you deployed in support of OPERATION ENDURING FREEDOM.  On 12 October 2012, you were charged with wrongfully hazing a Marine by striking him on the stomach with your hand until the Marine could recite the names of ten different breakfast cereals.  On 12 February 2013, you submitted a written request for discharge for the good of the service to avoid trial by court-martial.  Prior to submitting this request, you consulted a qualified military lawyer, at which time you would have been advised of your rights and warned of the probable adverse consequences of accepting such a discharge.  After the staff judge advocate determined your request was sufficient in law and fact, your Commanding Officer was directed to discharge you with an other than honorable (OTH) character of service.  On 21 March 2013, you were discharged with an OTH characterization of service. 
 
As part of the Board’s review, a qualified mental health professional reviewed your request and provided the Board with an AO on 25 November 2020.  The AO stated your in-service records contain evidence of counseling for a diagnosis of adjustment disorder but no records are available to explain the clinical circumstances of the adjustment disorder.  Further, the AO states your in-service records show you were screened for PTSD and traumatic brain injury prior to separation and since the psychological screening instruments were negative, no further evaluation was indicated.  Additionally, the AO stated you have not presented evidence of a post-discharge clinical diagnosis of any mental health condition as rendered by a mental health practitioner.  Based on the available evidence, the AO concluded the preponderance of available objective evidence was insufficient to establish you incurred PTSD as a result of your military service that may have mitigated your misconduct.  The AO was provided to you on 30 November 2020, and you were given 30 days to respond.  When you did not respond within the 30 days, the case was submitted to the Board for review.   
 
The Board carefully reviewed your application, weighed all potentially mitigating factors, and considered your contention you suffered from PTSD while in-service and the loss of a close friend influenced your decision to request administrative discharge in lieu of trial by court-martial.  The Board, applying liberal consideration and noting you did not submit any documentation or advocacy letters for consideration, did not find evidence of an error or injustice that warrants upgrading your characterization of service or granting clemency in the form of an upgraded characterization of service.   
 
The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in your case in accordance with the Wilkie Memo.  These included, but were not limited to, your desire to upgrade your discharge and contentions discussed above.  Based upon this review, the Board concluded these potentially mitigating factors were insufficient to warrant relief.  Specifically, the Board determined your misconduct outweighed these mitigating factors.  Accordingly, given the totality of the circumstances, the Board determined that your request does not merit relief.   
 
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,