DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 

Docket No: 1115-21 
Ref: Signature Date 

Dear Petitioner: 

This is in reference to the application you filed for correction of your son      naval record pursuant to Title 10, United States Code, Section 1552. The Board for Correction of Naval Records (Board) extends its deepest condolences to you on the loss of your son and extends it appreciation to you for your service, and for that of your son. However, after careful and conscientious consideration of relevant portions of his naval record and your application, 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 the 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 the application on 30 July 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, 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), and the relevant Advisory Opinion. 
Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel would not materially add to its understanding of the issues involved. Therefore, the Board determined that a personal appearance was not necessary and considered the case based on the evidence of record. 

Your son      enlisted in the Marine Corps and began a period of active duty on 16 June 2014. On 30 March 2016, your son received nonjudicial punishment (NJP) for four specifications of absence without leave, failure to obey a lawful order or regulation, and two specifications of false official statement. On 31 March 2016, he was notified of administrative separation proceedings against him on the basis of a Pattern of Misconduct. He acknowledged his rights the same day and waived his right to appear before an administrative separation board. On 7 April 2016, the Commander, U.S. Marine Corps Forces Cyberspace Command recommended approval of the administrative separation. On 11 April 2016, your son was counseled for wrongful use of a controlled substance. On 14 April 2016, your son was discharged from the Marine Corps on the basis of a Pattern of Misconduct, and received an other than honorable discharge and a reentry (RE) code of RE-4. 

In 2017, your son petitioned the Naval Discharge Review Board (NDRB) for an upgrade to his characterization of service from other than honorable to honorable. He contended that his discharge was improper and unjust and that his misconduct was due to a toxic leadership environment. He also asserted that a mental health condition was a contributing factor to his misconduct. NDRB noted that his official service record indicates that he was not diagnosed with a mental health condition and that he failed to provide evidence of a post-service diagnosis for a mental health condition. NDRB found that the discharge was proper and equitable. 

In your application to the Board, you assert that while your son was on active duty in the Marine Corps he requested an administrative discharge due to losing his family. When his request was denied, he began to have problems. You contend that no one would help him and that he was given medication for dental issues, which compounded his problems and contributed to the harm he endured. You state that your son endured mental abuse, harassment, neglect, toxic leadership and repercussions for acts beyond his control. You also assert he was singled out by his command, feared losing his family and had anxiety attacks due to “always failing.” You state that your son was denied benefits because of his other than honorable discharge, did not receive assistance for treatment of any kind, struggled with addiction that started in the Marine Corps, was denied benefits from Veterans Affairs, and has since lost his life to an overdose. You indicate that your son is entitled to an upgrade to an honorable discharge. 

Your request was fully and carefully considered by the Board in light of 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. The Board also reviewed your petition in light of the Under Secretary of Defense’s memorandum, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations” of 25 July 2018. 

As part of the review process, a mental health professional reviewed your request, and issued an Advisory Opinion dated 25 July 2021. The Advisory Opinion noted that your son’s in-service records indicate that he underwent a substance use disorder evaluation after testing positive for cocaine use in April 2016 and it was determined he did not meet the criteria for an alcohol or cocaine use disorder and was not recommended for substance use treatment. Also, in April 2016, a memo noted that your son’s records were reviewed and neither Post-Traumatic Stress Disorder, Traumatic Brain Injury, or another medical condition were contributing to his misconduct. The Advisory Opinion stated that your son exhibited behaviors indicative of a mental health condition that would mitigate some, but not all of misconduct. The Advisory Opinion concluded that although there was no actual mental health condition diagnosed while in-service, the available objective evidence indicated that your son exhibited some behaviors associated with a mental health condition during his military service and some of his misconduct may be mitigated by his mental health condition. 

The Board, in its review of your entire record and application, carefully weighed all potentially mitigating factors, including your contention that your son was targeted, harassed, subjected to toxic leadership, and deprived of support and treatment both during his service and after his discharge. The Board also considered the conclusions of the Advisory Opinion and the findings of NDRB. The Board, consistent with the Advisory Opinion, noted that your son’s in-service records indicate that he was appropriately screened for substance abuse and mental health conditions while he was in the Marine Corps prior to his discharge. 

Furthermore, even in consideration of the Advisory Opinion’s determination that your son exhibited some behaviors associated with a mental health condition, the Board found that there is insufficient objective evidence to establish that he suffered from a mental health condition while he was in the Marine Corps that mitigated his misconduct. The Board evaluated your contentions of mental abuse, harassment, targeting, and toxic leadership but determined that you did not provide information to support or corroborate the claims of abuse or maltreatment that are inferred to have caused or exacerbated a mental health condition and/or addition in your son. The Board also carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in your son’s case in accordance with the Wilkie Memo. These included, but were not limited to, his desire to upgrade his discharge and the contentions that have been previously noted. However, the Board determined that your son’s misconduct outweighed these mitigating factors. The Board deeply sympathizes with the loss of your son, but found that his administrative discharge was supported by the evidence of misconduct in his service record. The Board determined that his other than honorable discharge was issued without error or injustice, and that an upgrade is not warranted. 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 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, 

8/23/2021