Docket No: 8523-19
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 15 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, an Advisory Opinion (AO) from a qualified mental health provider, 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) (Kurta Memo, Hagel Memo, and Wilkie Memo collectively, “Clemency Memos”).   
 
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 on 21 July 1978.  On 20 March 1979 you received non-judicial punishment (NJP) for unauthorized absence (UA).  On 11 May 1979 you were convicted at a Summary Court-Martial of three specifications of failing to obey a lawful order.  On 19 March 1980 pursuant to your guilty pleas, you were convicted at a Special Court-Martial of a sixty-seven day UA and seven UA specifications of failing to go to your appointed place of duty.  On 27 June 1980 you received NJP for four specifications of UA.  On 4 August 1980 your separation physical and medical history noted no psychiatric or neurologic conditions or symptoms.   
 
On 21 August 1980 you commenced a period of UA that terminated after 568 days on 12 March 1982 with your arrest by civil 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), you presumably submitted a voluntary written request for an undesirable discharge for the good of the service in lieu of trial by court-martial for your lengthy UA period.  In blocks 29 and 18 of your DD-214 it states “Time Lost” was 21 August 1980 through 12 March 1982, a period lasting approximately 568 days.  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.  Ultimately, on 22 April 1982 you were separated from the Marine Corps with an other than honorable conditions (OTH) discharge.  The Board noted that on your DD-214, the narrative reason for separation was “Good of the Service,” and your separation code was “KFS1,” which corresponds to an Adsep in lieu of court-martial.   
 
As part of the Board review process, the BCNR Physician Advisor who is a licensed clinical psychologist (Ph.D.), reviewed your contentions and the available records and issued an AO dated 4 December 2020.  The Ph.D. noted that your available in-service records did not contain any information regarding referrals to medical or mental health services or descriptions of behaviors which would have indicated a referral for services would be warranted.  The Ph.D. also noted that your in-service records did not contain direct or indirect evidence of psychological/behavioral changes which may have indicated any mental health condition, or any traumatic events or clinical diagnoses while in service.  The Ph.D. concluded by opining that the evidence failed to establish you were diagnosed with a mental health condition, suffered from a mental health condition on active duty, and/or that your in-service misconduct could be attributed to a mental health condition.   
 
The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in your case in accordance with the Clemency Memos.  These included, but were not limited to:  (a) the only reason you have an OTH discharge is because of your UA; (b) your UA was due to mental illness; (c) you are currently diagnosed with bipolar disorder and schizophrenia and have panic attacks and are being treated through private doctors; (d) had this happened in today’s service you would have been diagnosed and treated for your mental illness instead of being discharged; and (e) you were not able to obtain the medical treatment you needed while on active duty and was not diagnosed with mental illness until you left the service.  However, given the totality of the circumstances, the Board determined that your request does not merit relief. 
 
In accordance with the Clemency Memos, 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 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.  Moreover, the Board observed that you did not submit any clinical documentation or treatment records to support your mental health claims despite a request from BCNR on 3 December 2019 to specifically provide additional documentary material.  The Board also determined that the evidence of record did not demonstrate that you were not mentally responsible for your conduct or that you should otherwise not be held accountable for your actions.     
 
Additionally, the Board observed that character of military service is based, in part, on conduct and overall trait averages which are computed from marks assigned during periodic evaluations.  Your overall active duty trait average was 2.72 in conduct.  Marine Corps regulations in place at the time of your discharge required a minimum trait average of 4.0 in conduct (proper military behavior), for a fully honorable characterization of service.  The Board concluded that your conduct marks during your active duty career were a direct result of your pattern of serious misconduct which further justified your OTH characterization of discharge.  The Board also noted that there is no provision of federal law or in Navy/Marine Corps regulations that allows for a discharge to be automatically upgraded after a specified number of months or years.  The Board determined that characterization under OTH conditions is generally warranted for misconduct and is appropriate when the basis for separation is the commission of an act or acts constituting a significant departure from the conduct expected of a Marine.  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.  The Board carefully considered any matters submitted regarding your post-service conduct and accomplishments, however, even in light of the Wilkie Memo and reviewing the record holistically, the Board still concluded that given the totality of the circumstances your request does not merit relief.  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,