Dear : 
 
This letter is in reference to your reconsideration request dated 17 October 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.      
 
Although your original 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 6 November 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, an Advisory Opinion (AO) from a qualified mental health provider, and applicable statutes, regulations and policies.   
 
You enlisted in the Marine Corps on 4 February 1974.  While still at initial recruit training, on 18 March 1974 you received non-judicial punishment (NJP) for failing to obey a lawful order.  On 27 March 1974 you received NJP for unauthorized absence (UA) and you received correctional custody as a punishment.  On 13 May 1974 you received a third NJP for failing to obey a lawful order.  On 19 July 1974 you received  a fourth NJP for both UA and for failing to obey a lawful order.  On 2 August 1974 you received a fifth NJP for breaking restriction.  On 4 November 1974 you received a sixth NJP for UA, and on 19 June 1975 you received a seventh NJP for UA and for failing to obey an order of a senior non-commissioned officer.  On 17 May 1976 you commenced a period of UA.  You remained in a UA status for 141 days until your surrender to military authorities on 5 October 1976. 
 
On 16 November 1976, you submitted a voluntary written request for discharge for the good of the service to avoid trial by court-martial for your 141-day UA.  Prior to submitting this voluntary discharge 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.  You also included a one-page handwritten statement with your discharge request where you stated that you were applying for an undesirable discharge and that you fully understood the various veteran benefits you may be deprived of if separated with an undesirable discharge.  As a result of this course of action, you were spared the stigma of a court-martial conviction for your long-term UA, as well as the potential sentence of confinement and the negative ramifications of receiving a punitive discharge from a military judge.  Ultimately, on 15 December 1976 you were separated from the Marine Corps with an other than honorable (OTH) discharge. 
 
Your contention that you suffered from post-traumatic stress disorder (PTSD) was fully and carefully considered by the Board in light of the guidance provided by the Secretary of Defense’s Memorandum, “Supplemental Guidance to Military Boards for Correction of Military/Naval Records Considering Discharge Upgrade Requested by Veterans Claiming Post Traumatic Stress Disorder” of  3 September 2014, and the "Clarifying Guidance to Military Discharge Review Board 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" memorandum of 25 August 2017.  
 
As part of the Board review process, the Board’s Physician Advisor, who is a medical doctor and Fellow of the American Psychiatric Association (MD), reviewed your contentions and the available records, and issued an AO dated 27 September 2020.  The MD noted that a review of your service records did not reveal the existence of any mental health symptoms or conditions, and that your in-service records did not provide evidence of behavioral changes or psychological symptoms indicative of PTSD or other diagnosable mental health conditions.  The MD concluded by opining that although you have a post-discharge PTSD diagnosis, there was insufficient evidence that you suffered from PTSD on active duty or that your misconduct could be attributed to PTSD or other mental health conditions. 
 
The Board carefully weighed all potentially mitigating factors, such your contentions that included, but were not limited to:  (a) that you experienced extreme treatment, racism and mental and physical violence and abuse from Ku Klux Klan members in the Marine Corps including members of your command, (b) you commenced your  UA because you feared for your life and to escape threats against you and your girlfriend, (c) your exemplary post-service personal and professional accomplishments, (d) that your UAs that led to your discharge were a direct result of your PTSD and PTSD-related symptoms, and (e) that your mental health conditions were caused by the emotional and physical abuse, racism and threats you suffered.  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. 
 
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, the Board concurred with the AO and concluded that there was no nexus between any PTSD and/or PTSD-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 PTSD or PTSD-related symptoms.  The Board noted that the evidence of record did not demonstrate that you were not responsible for your conduct or that you should not be held accountable for your actions.  The Board determined that your undesirable discharge request was voluntary on its face, and there is no indication that your due process rights were violated.  The Board considered your post-service accomplishments, but ultimately concluded your serious misconduct still warranted an OTH characterization.  Additionally, absent a material error or injustice, the Board generally will not summarily upgrade a discharge solely for the purpose of facilitating benefits from the Department of Veterans Affairs, 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 an 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.  The Board carefully considered your post-service conduct, however, even in light of the USD Memo and reviewing the record holistically, the Board still concluded that, given the totality of the circumstances and your lengthy UA, 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,