DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 1130-21 Ref: Signature Date Dear Petitioner: 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 you did not file your application in a timely manner, the statute of limitations 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 13 September 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). Additionally, the Board considered a 30 July 2021 advisory opinion (AO) furnished by qualified mental health provider. You enlisted in the Marine Corps and commenced a period of active duty on . On 27 January 1988, you received nonjudicial punishment for using disrespectful language toward a corporal and using provoking words to a private first class who was standing firewatch. On 25 August 1988, you received a written notice of counseling notifying you of your decertification from the personnel reliability program. On 12 January 1989, you were issued a written warning concerning your misconduct that resulted in your previous nonjudicial punishment. On 27 February 1989, you received nonjudicial punishment for violating lawful general orders by having an improper haircut and also by playing basketball while you were on light duty on two occasions. You appealed that nonjudicial punishment, and on 9 March 1989 your appeal was denied. On 19 March 1989, you were notified of the initiation of administrative separation processing and your rights in connection therewith. You waived your right to an administrative board, and on 15 June 1989 you were discharged with an other than honorable characterization of service. In 1990, you filed an application for review with the Naval Discharge Review Board (NDRB). You contended that you received only two nonjudicial punishments, and that you tried at the time of your discharge to speak with the commanding officer of your base, because you thought that at least three nonjudicial punishments were required in order to be discharged, and you believed you were treated unfairly. On 11 April 1991, the NDRB denied your application, reasoning that only two nonjudicial punishments were required for discharge, and that there was otherwise no impropriety in your discharge characterization. The Board carefully considered all potentially mitigating factors in your petition to determine whether the interests of justice warrant relief in your case including in accordance with the Wilkie Memo. You contend in your petition that your nonjudicial punishments that resulted in your discharge were for minor infractions that should not have resulted in discharge, much less a discharge under other than honorable conditions. You further contend that throughout your two-plus years of service, you were singled out and treated unfairly due to race. You also contend that you were pressured into waiving your administrative board. Finally, you assert that you had bipolar disorder and a major depressive disorder in-service, which serves to mitigate your misconduct. In connection with your assertion that you suffered from a mental health condition while you were on active duty, which served to mitigate you misconduct, the Board requested, and reviewed, the AO. The AO explained that, Petitioner’s in-service records did not contain evidence of a diagnosis of a mental health condition. Records did show two nonjudicial punishments for minor misconduct. Although contradictory, the evidence submitted by Petitioner for review contained evidence of a postdischarge depressive disorder linked to Petitioner’s military service. The evidence presented indicated Petitioner’s mental health symptoms started after his discharge from military service. In addition, he provided an alternative explanation for some of his misconduct that supported it was not the result of a mental health condition. Further, misconduct such as playing basketball and not having a regulation haircut would not be attributable to a mental health condition. The AO concluded, “it is my considered clinical opinion the preponderance of available evidence failed to establish Petitioner suffered from a mental health condition during his military service or his in-service misconduct could be mitigated by a mental health condition.” Based upon its review, the Board concluded the potentially mitigating factors that you raised were insufficient to warrant relief. With respect to your contention relating to a mental health condition, the Board concurred with the findings of the AO. With respect to your contention that your misconduct was minor, that you were treated unfairly, and that you suffered racism while in-service, that Board noted that you did not provide evidence supporting these contentions. Ultimately, the Board determined that your repeated misconduct, despite having received a written warning, outweighed the mitigating factors that you presented. 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, Executive Director