DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 9879-19 Ref: Signature Date Dear Mr. : This is in reference to your application for correction of your naval record pursuant to Title 10, United States Code, Section 1552. After careful and conscientious consideration of the entire record, the Board for Correction of Naval Records (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 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 for Correction of Naval Records, sitting in executive session, considered your application on 25 September 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 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 7 September 2000 under your given name . In January 2009 you legally changed your name in , to . On your enlistment physical and medical history, no psychiatric or neurologic abnormalities and/or symptoms were noted. On 3 August 2001 you received non-judicial punishment (NJP) for willfully disobeying a lawful order. Subsequently, you received a “Page 11” counseling warning (Page 11) documenting the following deficiencies: unauthorized absence (UA) on several occasions, falling asleep in class and not paying debt, and a general lack of motivation and slowness accomplishing the simplest of tasks. The Page 11 warned you that a failure to take corrective action may result in administrative separation. On 17 January 2002 you received a Page 11 notification for UA lasting ten (10) days. On 18 January 2002 you received NJP for a ten-day UA. On 19 September 2002 you received NJP for failing to obey a lawful order. You were issued a Page 11 that warned you that a failure to take corrective action may result in adverse administrative action or judicial proceedings, including but not limited to administrative separation. On 18 November 2002 you received NJP for UA and for failing to obey a lawful order. You were issued a Page 11 that warned you that failure to take corrective action may result in adverse administrative action or judicial proceedings, including but not limited to administrative separation. Thereafter, your command initiated administrative discharge action by reason of misconduct due to a pattern of misconduct. Unfortunately, the administrative separation notification and statement of awareness/election of rights documentation is not in your service record. However, the Board relied on a presumption of regularity to support the official actions of public officials. In the absence of substantial evidence to rebut the presumption, to include evidence submitted by you, and given the narrative reason for separation and corresponding separation code as stated on your DD Form 214, the Board presumed that you were properly processed for separation and discharged from the Marine Corps for misconduct due to a pattern of misconduct after you waived your right to an administrative separation board. Ultimately, on 3 January 2003 you were discharged from the Marine Corps with an “other than honorable” (OTH) characterization of service and assigned an RE-4 reentry code. On 30 August 2007, the Naval Discharge Review Board (NDRB) determined that your discharge was proper and that no change was warranted. The NDRB concluded that the evidence of record did not demonstrate: (a) that you were not responsible for your conduct, (b) that you should not be held accountable for your actions, or (c) that medical issues were the cause of your misconduct. Your contention that you suffered from mental health conditions 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 BCNR 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 17 December 2019. The MD concluded by opining that there was insufficient evidence available to attribute your misconduct to any mental health conditions. The Board carefully weighed all potentially mitigating factors, such as your contentions that included, but were not limited to: (a) you were medicated with Zoloft for depression, anxiety, and PTSD, (b) you continue to receive treatment from your local hospital and VA hospital, (c) your symptoms initiated in the military and were all prior to your NJPs, and (d) that it is possible you were never given proper instruction on your rights in connection with your administrative separation. 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, even under the liberal consideration standard, the Board concluded that there was no convincing evidence that you suffered from any type of 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. As a result, the Board concluded that your pattern of misconduct was not due to any mental health conditions or their related symptoms. Moreover, as explained above, the Board presumed you were notified of, and waived your procedural rights in connection with your administrative separation. In doing so, you gave up your first and best opportunity to advocate for retention or a more favorable characterization of service. Additionally, the Board determined that there is no evidence in the record to corroborate your contention that you may not have been afforded your due process rights in connection with your administrative separation. Further, the Board 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 period of time. 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. Accordingly, the Board determined that there was no impropriety or inequity in your discharge, and that the misconduct reflected in your record supported receipt of an OTH discharge. Additionally, the Board 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 (BCM/NRs) 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 BCM/NRs “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. However, 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 case are such that favorable action cannot be taken. 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, 11/22/2020 Executive Director