Dear : 
 
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 5 February 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”).   
 
You enlisted in the Marine Corps on 27 October 1997.  Your pre-enlistment physical examination and medical history noted no psychiatric or neurologic conditions or symptoms.  On 2 September 1999 you were issued a “Page 11” counseling warning (Page 11) for unauthorized absence (UA), going out of bounds on weekend liberty, and lying to your SNCOIC about your whereabouts during liberty.  On 28 October 1999 you were issued a Page 11 warning for insubordinate conduct.  In May 2000 you were convicted at a Summary Court-Martial (SCM) for UA lasting thirteen days.  On 22 May 2000 you were issued a Page 11 warning documenting your inability to show initiative, drive or leadership ability to lead your squad, and you were relieved as squad leader.  On 30 October 2000 you received NJP for the wrongful use of cocaine, making a false official statement, and UA.   
 
On 2 November 2000 you were notified that you were being processed for an administrative discharge by reason of misconduct due to drug abuse.  You expressly waived your rights to consult with counsel, submit a written statement, and to present your case to an administrative separation case.  Ultimately, on 5 April 2001 you were separated from the Marine Corps with an other than honorable (OTH) characterization of service.   
 
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 15 December 2020.  The Ph.D. observed from the civilian medical records provided that the VA granted you service-connection for treatment purposes only for an adjustment disorder (claimed as PTSD), and that you were diagnosed with an adjustment disorder on active duty.  However, the Ph.D. noted that your in-service records do not contain evidence of a PTSD diagnosis or psychological/behavioral changes indicating any mental health condition, or any primary or secondary trauma.  The Ph.D. also noted that VA evaluator did not find you suffered from service-connected PTSD and that your drug use was less likely than not caused by an in-service stressor.  The Ph.D. determined that while you do not have a PTSD diagnosis, you presented documentation supporting an adjustment disorder diagnosis which would likely mitigate your UA misconduct.  The Ph.D. concluded by opining that your adjustment disorder may mitigate some of your in-service misconduct, but also stated that any misconduct prior to your father’s heart attack would not be attributable to the 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, that the VA granted you a service-connection for an adjustment disorder (claimed as PTSD) and you are eligible for VA health benefits.  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 nexus between any mental health conditions or mental health-related symptoms and a majority of your misconduct, and determined that there was insufficient evidence to support the argument that any such mental health conditions mitigated the misconduct not involving UA that formed the basis of your discharge.  Even under the liberal consideration standard, the Board concluded that only some, but not all, of your misconduct was attributable to mental health-related conditions or symptoms and that your cocaine drug offense alone could have independently warranted an OTH discharge.  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 in conduct was 3.69.  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 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, the Board determined that there was no impropriety or inequity in your discharge, and even under the liberal consideration standard, the Board concluded that your serious misconduct clearly merited your receipt of an OTH. 
 
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,