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 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, 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 5 January 1993.  Your pre-enlistment physical and medical history noted no psychological or neurological conditions or symptoms.  On 22 August 1995 you were convicted at a Special Court-Martial of three specifications of assault consummated by a battery.  You received as punishment eighty-five days of confinement, forfeitures of pay for three months, a reduction in rank to the lowest enlisted paygrade (E-1), and a discharge from the Marine Corps with a Bad Conduct Discharge (BCD).  Upon the completion of appellate review in your case, on 20 August 1996 you were discharged from the Marine Corps with a BCD and assigned an RE-4 reentry code.  
 
As part of the Board review process, the Board’s Physician Advisor who is a licensed clinical psychologist (Ph.D.), reviewed your contentions and the available records and issued an AO dated 17 December 2020.  The Ph.D. observed that you exhibited behaviors associated with a substance use disorder for which you received treatment.  However, the Ph.D. noted that your in-service records do not contain evidence of a mental health diagnosis or psychological or behavioral changes indicating any mental health condition.  The Ph.D. also noted that throughout your disciplinary actions, counselings, and judicial processing there were no concerns noted warranting referral to mental health resources, nor did you raise the claim you were suffering from a mental health disorder.  The Ph.D. further noted that your post-service civilian medical records and diagnoses therein did not indicate such diagnoses were service-connected or linked to your misconduct.  The Ph.D. concluded by opining that although you were diagnosed post-service with certain mental health conditions, the preponderance of available evidence failed to establish you were diagnosed with, or suffered from, a service-connected mental health condition that may have mitigated your in-service misconduct.   
 
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) you served with honor and after all this time are still proud to be a former Marine, (b) you received Meritorious Mast four times, you were a four-time rifle expert, and you received perfect physical fitness test scores, (c) following your Level III treatment program you served thirty days of restriction and were not allowed to obtain any follow-up treatment, and (d) you held a position as a Lance Corporal in your unit that was designated for a full Corporal.  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, even under the liberal consideration standard, the Board concluded that there was no nexus between any mental health conditions and/or related symptoms and your misconduct, and determined that there was insufficient evidence to support the argument that any such mental health conditions 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 mental health-related conditions or symptoms.  The Board noted that the evidence of record did not demonstrate that you were not mentally responsible for your conduct or that you should not be held accountable for your actions.  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.  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 your serious misconduct and disregard for good order and discipline clearly merited your receipt of a BCD. 
 
The Board also noted that, although it cannot set aside a conviction, it might grant clemency in the form of changing a characterization of discharge, even one awarded by a court-martial.  However, the Board concluded that despite your contentions this is not a case warranting any clemency.  You were properly convicted at a SPCM of serious misconduct, and the Board did not find any evidence of an error or injustice in this application that warrants upgrading your BCD.  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.   
 
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,