Docket No: 9022-19            
Ref: Signature Date 

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 your application was not filed in a timely manner, the Board found it in the interest of justice to waive the statute of limitations and consider your application on its merits.  A three-member panel of the Board, sitting in executive session, considered your application on 25 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 the 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). 
 
Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to its 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 and began a period of active duty on 5 April 1993.  On 1 November 1993, you were found guilty at special court-martial (SPCM) for a 54-day period of unauthorized absence (UA).  You were sentenced to confinement for 60 days, forfeiture of $500 pay per month for 2 months, and a bad conduct discharge.  On 28 April 1995, the Navy Clemency and Parole Board reviewed your request for clemency and considered in part whether you should be restored to active duty.  The Navy Clemency and Parole Board determined that restoration was not appropriate but remitted your bad conduct discharge to a general discharge under honorable conditions.  On 23 May 1995, you were discharged from the Marine Corps on the basis of Convenience of the Government, and received a general discharge and a reentry (RE) code of RE-4.  In your application to the Board, you provide a copy of military records which indicate that after your separation from the Marine Corps, you enlisted in the Army on 26 November 2001, and served on active duty until 12 September 2003.  Your Certificate of Release of Discharge from Active Duty (DD Form 214) for your active duty service in the Army reflects an other than honorable discharge issued in lieu of trial by court martial. 
 
In your application to the Board, you request an upgrade from your general characterization of service to an honorable discharge, a change to your RE-4, a change to your narrative reason for separation, and your separation code.  You indicate that you were discharged due to mental health issues, which have declined.  You contend that while you were in the Marine Corps, you suffered from Post-Traumatic Stress Disorder (PTSD) which was not properly addressed, complications from several Traumatic Brain Injuries (TBIs), and other undiagnosed psychological impairments.  You assert that you were not given the opportunity to provide medical documents proving your disabilities nor were you able to speak and explain your position.  You state that since your discharge, your mental health has deteriorated, and your mental and cognitive functions have slowed. 
 
The Board noted that your application for correction raises a potential issue of a mental health condition during your military service.  In a communication dated 30 October 2019, you were asked to provide additional medical or clinical evidence to support your claim.  When you did not provide additional evidence, your case was re-opened and processed for consideration by the Board. 
 
As part of the review process, a Physician Advisor reviewed your request and issued an Advisory Opinion (AO) dated 7 December 2020.  The AO noted that your available records do not contain evidence of a mental health condition, and throughout your military service, disciplinary actions, counseling, and administrative processing, there were no concerns noted of any indications of a mental health condition that would have warranted referral to mental health resources.  Additionally, the AO considered that you did not submit any post-discharge information to support a clinical diagnosis of any mental health condition as rendered by a mental health practitioner.  The AO concluded that based on the available evidence, there is insufficient evidence that you incurred PTSD as a result of your military service that may have mitigated your misconduct.  The AO was provided to you, and you were given 30 days in which to submit a response.  When you did not provide a response within the 30-day timeframe, your case was submitted to the Board for consideration.   
 
The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in your case including in part in accordance with the Wilkie Memo, the Hagel Memo, and the Kurta Memo.  These included, but were not limited to your contention that you suffered from PTSD, multiple TBIs, and that your mental health and cognitive functions have been in decline since your discharge.  The Board noted the issues you raise in your application but like the AO, found that there is insufficient evidence in either your available service record or provided by you to support a finding of an in-service mental health condition that mitigated your misconduct of UA, which resulted in a SPCM conviction.  Absent such evidence or information, the Board concluded that you were responsible for the 54-day period of UA.  The Board noted that although you were originally sentenced in part to a bad conduct discharge, you were granted clemency and ultimately received a general characterization of service on the basis of convenience of the government.  The Board concluded that taking into consideration both the SPCM conviction and the Navy Clemency and Parole Board’s action in 1995, that your general discharge, narrative reason of Convenience of the Government, separation authority of MARCORSEPMAN par 6203.4, separation code of JNF1, and RE-4 were properly issued and do not merit corrective action.   
 
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,