Docket No: 9221-19 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 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”). You enlisted in the Marine Corps on 21 May 1992. Your pre-enlistment physical and medical history noted no psychiatric or neurologic conditions or symptoms. Specifically on your medical history you expressly denied ever attempting suicide. On 22 November 1993 you received a “Page 11” counseling warning (Page 11) documenting your insubordinate conduct. The Page 11 warned you that a failure to take corrective action may result in administrative separation. On 11 May 1994 you received two separate Page 11 warnings stating you were not recommended for promotion to Lance Corporal due to a recent DUI and also documenting an alcohol-related incident and frequent involvement with civilian and military authorities. On 16 October 1994 you were hospitalized at Naval Hospital Camp for further treatment of a suicide attempt. The narrative summary during your treatment documented several pre-service suicide attempts beginning at age 16. In March 1995 you received a Page 11 warning documenting an alcohol-related incident in . On 10 May 1995 you received non-judicial punishment (NJP) for violating an on-base driving revocation order and for public intoxication and urinating on public ground. On 6 July 1995 you received a Page 11 warning for sodomy and disorderly conduct following a Criminal Investigation (CID) Report. On 8 August 1995 your command provided you notice that you were being administratively processed for separation from the Marine Corps by reason of misconduct due to minor disciplinary infractions, misconduct due to the commission of a serious offense (sodomy), and homosexuality. You consulted with counsel and elected in writing to waive your rights to submit a written rebuttal statement to the separation authority and to request a hearing before an administrative separation board. Ultimately, on 1 September 1995 you were discharged from the Marine Corps with the primary basis for separation being misconduct due to the commission of a serious offense. You received an other than honorable conditions (OTH) characterization of service and were assigned an RE-4 reentry code. As part of the Board review process, the BCNR Physician Advisor who is a licensed clinical psychologist (Ph.D.), reviewed your PTSD contentions and the available records and issued an AO dated 10 December 2020. The Ph.D. observed that you were hospitalized from 16 through 24 October 1994 after a suicide attempt, and that your diagnosis at discharge was an adjustment disorder with a mixed disturbance of emotions and conduct, acute alcohol intoxication, and alcohol abuse. The Ph.D. noted that at no time were you diagnosed with depression or PTSD and you did not provide any documentation to support an alternate mental health diagnosis. The Ph.D. also noted that while you contended you suffered from PTSD/depression, you did not provide any details of symptoms, traumatic events, or post-service clinical diagnosis. The Ph.D. concluded by opining that the evidence failed to establish you were either diagnosed with PTSD/depression, suffered from PTSD/depression on active duty, and/or that your in-service misconduct could be attributed to a mental health condition. The Don’t Ask, Don’t Tell Repeal Act of 2010, and the Under Secretary of Defense Memo of 20 September 2011 (Correction of Military Records Following Repeal of Section 654 of Title 10, United State Code), both set forth the Department of the Navy's current policies, standards, and procedures for correction of military records following the “don’t ask, don’t tell” (DADT) repeal. The current policy now provides service Discharge Review Boards with the guidance to grant requests to change the characterization of service to “honorable” or “general (under honorable conditions),” narrative reason for discharge to “secretarial authority,” separation code to “JFF,” and reentry code to “RE-1J” when the original discharge was based solely on DADT or a similar policy in place prior to enactment of it, and there are no aggravating factors in the record, such as 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) that you were discharged from the Marine Corps after command ridicule and harassment for being gay, and (b) you are homeless and have PTSD but are unable to be seen at VA hospitals because of your discharge. 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 PTSD or mental health condition 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. As a result, the Board concluded that your misconduct was not due to mental health-related symptoms. 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 concluded that DADT policy guidance did not apply to the circumstances surrounding your discharge. Your command processed you for three separate bases: misconduct due to the commission of a serious offense, homosexuality, and misconduct due to minor disciplinary infractions. Thus, your separation processing and discharge was not based solely on the DADT policy. Moreover, the Board unequivocally determined that you had a legal, moral and ethical obligation to remain truthful on your enlistment paperwork. Had you properly and fully disclosed your pre-service suicide attempts, you would have been disqualified from enlisting. 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 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,