DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 

Docket No: 902-19 
Ref: Signature Date 

Dear 
 
This letter is in reference to your reconsideration request dated 2 January 2019.  You previously petitioned the Board for Correction of Naval Records (Board) and were advised that your application had been disapproved.  Your case was reconsidered in accordance with Board procedures that conform to Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004).  After careful and conscientious consideration of the entire record, the Board found the evidence submitted was insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied.
 
A three-member panel of the Board, sitting in executive session, considered your application on 5 March 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 and personal statement, together with all material submitted in support thereof, relevant portions of your naval record, the 30 September 2019 Advisory Opinion (AO) from a Navy mental health provider, and applicable statutes, regulations and policies. 

Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will 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 8 December 1969. On 28 August 1970 you left your duty station without authority and went into an unauthorized absence (UA) status.  You remained in a UA status until 23 October 1970, a period of 56 days.  On 27 October 1970, you went to non­judicial punishment (NJP) for your UA.  On 9 November 1970, you left your duty station without authority again and went into a UA status for a period of 8 days until 17 November 1970. 

Your service record indicates that between 12 January 1971 and 18 March 1971, you participated in four (4) different combat operations against hostile forces in Vietnam.  On 30 March 1971, your service record indicates you began a string of UA periods while stationed in Vietnam.  You had UA periods that lasted from:  (a) 30 March to 2 April, (b) from 3 April to 4 April, (c) from 9 April to 14 April, and (d) from 16 April to 26 April 1971.  The command you were absent from was							.	

On 1 May 1971, you submitted a voluntary written request for discharge for the good of the service to avoid trial by court-martial for multiple specifications of UA and breaking restriction.  Prior to submitting this request, you 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, including substantial prejudice in post-service civilian life.  Your request was granted on 11 May 1971, and your Commanding Officer was directed to issue an undesirable/other than honorable (OTH) discharge for the good of the service.  As a result of this course of action, you were spared the stigma of a court-martial conviction, as well as the potential sentence of confinement and the negative ramifications of receiving a punitive discharge from a military judge.  On 28 May 1971, you were discharged with an OTH characterization of service. 

Your contention that you suffered from multiple mental health disorders while on active duty 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, “ClarifyingGuidance 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 Navy mental health practitioner (MHP) also reviewed your request for correction and provided the Board with an AO.  The MHP noted that you submitted treatment records from the Department of Veterans Affairs (VA) granting service-connection for treatment purposes for esophageal cancer and diabetes mellitus, but denying service-connection for treatment purposes for major depressive disorder.  The MHP observed that you did not submit any medical documentation of a mental health diagnosis incurred during military service.  The MHP concluded by opining that there was insufficient evidence to attribute your misconduct to a service-connected mental health condition. 

The Board carefully weighed all potentially mitigating factors, such your contentions that included, but were not limited to:  (a) that you made a rash decision to return home without authorization and did not think about the consequences and that you had difficulty coping with your father’s death, (b) your record does not reflect that you received any grief counseling or mental evaluation, (c) your discharge characterization was inequitable and fundamentally unfair due to bias, mental duress, and is inconsistent with revised military practices for which others in similar circumstances were historically not punished as severely, (d) you signed the discharge documents because you were told your record would be changed to reflect a change from OTH to general discharge after a period of time, and (e) you were diagnosed with major depressive disorder and dysphasia, and that your mental condition went undiagnosed and unrecognized for a very long time. Unfortunately, the Board determined these mitigating factors and contentions were not sufficient to warrant upgrading your discharge or granting any other relief in your case given your voluntary request for a good of the service discharge in lieu of a trial by court-martial, and the overall seriousness of your pattern of misconduct. 

In accordance with the published guidance, 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 credible and convincing evidence that you suffered from any type of PTSD, depression, or any other mental health conditions while on active duty, or that any such mental health conditions were related to or mitigated the misconduct that formed the basis of your discharge.  The Board noted that the VA expressly denied any service-connection for major depressive disorder and dysphasia. Additionally, the Board noted that there is no credible evidence in the record, and you provided none, that you were told your record would be upgraded after a period of time.  The Board relies on a presumption of regularity to support the official actions of public officers and, in the absence of substantial evidence to rebut the presumption, to include evidence submitted by the Petitioner, the Board presumes that you were properly processed for separation and discharged from the Marine Corps.  Moreover, there is no provision of federal law or in Department of the Navy regulations that allows for a discharge to be automatically upgraded after a specified number of years.  Additionally, your undesirable discharge request was voluntary on its face, and there is no indication that your due process rights were violated.  The discharge in lieu of court-martial request you personally signed was a standard USMC form that could not be altered and was also witnessed by your military defense lawyer prior to being routed through your chain of command.  Further, 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 probable material error or injustice in your discharge, and even under the liberal consideration standard, the Board concluded that your serious misconduct and disregard for good order and discipline merited your receipt of an OTH discharge. 

Lastly, the Board noted 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 2.5 in conduct, and 3.75 in proficiency.  Marine Corps regulations in place at the time of your discharge required a minimum trait average of 4.0 in conduct (proper military behavior), and 3.8 in proficiency (proficient and industrious performance of duty), 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 misconduct.  Accordingly, the Board concluded that the overall seriousness of your willful misconduct and your lack of respect for good order and discipline while on active duty merited your receipt of a less than honorable discharge, and that there was no probable material error or injustice in your OTH discharge. 

The Board also reviewed your application under the recent guidance provided in the Under Secretary of Defense’s memorandum dated 25 July 2018 entitled, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations” (USD Memo).  The purpose of the USD Memo is to ease the process for veterans seeking redress and assist Boards for Correction of Military/Naval Records “in determining whether relief is warranted on the basis of equity, injustice, or clemency.” The USD Memo noted that “increasing attention is being paid to…the circumstances under which citizens should be considered for second chances and the restoration of rights forfeited,” and that “BCM/NRs have the authority to upgrade discharges or correct military records to ensure fundamental fairness.” The USD Memo sets clear standards and principles to guide BCM/NRs in application of their equitable relief authority, and further explains that boards shall consider a number of factors to determine whether to grant relief, including negative post-service conduct.  Accordingly, even in light of the USD Memo, the Board still concluded that, given the totality of the circumstances, your request does not merit relief.
 
It is regretted that the circumstances of your reconsideration petition 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 the absence of new matters for reconsideration, the decision of the Board is final, and your only recourse would be to seek relief at no cost to the Board from a court of appropriate jurisdiction. 

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,