Docket No: 9842-19
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 27 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, and applicable statutes, regulations, and policies, including the Kurta 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).  The Board also requested and reviewed an 18 December 2020 Advisory Opinion (AO) from a mental health professional, as well as your response to same. 
 
The Board determined that your personal appearance, with or without counsel, would 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 13 September 1993.  You completed your initial period of active duty for training on 13 February 1994, at which time you transferred to the Marine Corps Reserve.  After you were transferred to the reserve component, you failed to satisfy several drill participation requirements.  A written warning was entered into your record on 6 October 1996 for unsatisfactory drill participation for the weekend of 5 to 6 Oct 1996, but you were not available for signature due to your unauthorized absence (UA).  A similar warning was entered into your record on 8 December 1996, but you were again unavailable for signature due to your UA.  On 15 January 1997, you were warned that you were eligible, but not recommended for, promotion to Corporal due to your unsatisfactory drill participating.  You received another warning of your unsatisfactory drill participation on 2 February 1997, but you were again unavailable for signature due to your UA.  On 12 March 1997, you were notified via the U.S. Postal Service that you would be recommended for administrative reduction due to your unsatisfactory drill participation, but you were also advised that you were able to make up the missed drills and maintain a satisfactory drill status.  On 24 May 1997, you received another entry in your record for unsatisfactory drill participation.  On 30 May 1997, you received another promotion restriction entry, explaining that you were eligible but not recommended for promotion to Lance Corporal due to unsatisfactory drill participation.  Then, again, on 8 June 1997, another warning for unsatisfactory drill participation was entered into your record.  Ultimately, on 20 January 1998, you were discharged from the Marine Corps Reserve, with an other than honorable characterization of service, due to your failure to participate in the reserve. 
 
You filed two prior cases with this Board.  In the first, in 2016, you contended that your characterization of service was inequitable in that your command convinced you that you would get a general characterization of service, and that your command did not empathize with your reasons for missing drill.  You also stated that you had some struggles while in the Marine Corps and, post-service, you have had several accomplishments.  This Board denied your petition.  In your second case, in 2017, you contended that in 1996-97, you experienced hardships including vehicle breakdowns, carpool failures, and you were in two head-on car collisions that resulted in a total vehicle loss. 
 
The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in your case including in accordance with the Wilkie Memo.  These included, but were not limited to, your desire to upgrade your discharge and contentions that your discharge is not equitable in total character.  You further contend that your former medical condition was not considered or reviewed and you seek a review and an AO.  You also attached medical records and cite to letters of appreciation for review.  As relates to your first contention, the Board carefully reviewed the laudatory material that you provided in your petition, but it determined that the material you provided did not overcome your lack of participation in the Marine Corps Reserve.  Further, as you requested, the Board requested and reviewed an 18 December 2020 AO, which found as follows: 
 
Petitioner’s in-service records do not contain direct evidence of TBI or psychological/behavioral changes that may have indicated TBI. He ascribed the origin of his TBI to an incident in October 1994, but the emergency medicine evaluation revealed only contusions to shoulder and back of neck, but specifically no head trauma or symptoms/signs suggestive of TBI. Petitioner presented a post-discharge incomplete clinical note without any diagnosis of TBI, in which the three motor vehicle accidents cited by Petitioner were noted by the examining physician that Petitioner was, “…not taken to hospital, did not have any injury…” 
 
Ultimately, the AO determined that there is insufficient objective evidence that you incurred a TBI as result of your military service or that your misconduct may be mitigated by a mental health condition.” 
 
Based upon its review, the Board concluded the potentially mitigating factors you raised were insufficient to warrant relief.  Accordingly, 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 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 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,