Docket No: 1465-21              
          
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 Under Secretary of Defense for Personnel and Readiness regarding requests by Veterans for modification of their discharge due to mental health conditions, sexual assault, or sexual harassment (Kurta Memo).  A three-member panel of the Board, sitting in executive session, considered your application on 30 August 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, 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).  The Board also reviewed a 15 July 2021 advisory opinion (AO) from a mental health professional, and your response to the AO, which you sent by email on 19 August 2021.  Your response was reviewed by the same medical professional who prepared the original AO, and he indicated it did not change his opinion in the original AO. 
 
You enlisted in the Marine Corps and commenced a period of active duty on 24 August 1992.  On 11 July 1994, you received a written warning concerning your deficiencies in leadership.  On 22 August 1994, you received nonjudicial punishment for being derelict in the performance of your duties.  On 3 November 1994, you commenced a period of unauthorized absence, which was terminated by your surrender on 27 November 1994.  On 12 December 1994, you received nonjudicial punishment for unauthorized absence and absenting yourself without authority.  On 14 February 1995, you received nonjudicial punishment for unauthorized absence.  On 14 February 1995, you were counseled concerning the withdrawal of your recommendation for promotion and your platoon commander submitted his recommendation that you be administratively discharged with an other than honorable characterization of service.  Your chain of command concurred in the recommendation that you be administratively discharged with an other than honorable characterization of service, and on 14 March 1995, you were notified of the initiation of administrative separation processing and your rights in connection therewith.  You waived your right to an administrative board.  On 13 April 1995, a Marine Corps judge advocate found your discharge materials to be sufficient in law and fact, and on 21 April 1995, you were discharged with an other than honorable characterization of service. 
 
The Board carefully considered all potentially mitigating factors in your petition to determine whether the interests of justice warrant relief in your case, including those factors set forth in the Wilkie Memo.  You contend in your petition that you were diagnosed, at some point after your discharge, with a mental health condition that you contend you incurred during your service, and which might have mitigated the misconduct that led to your other than honorable characterization of service.  You also set forth your positive activities that you engaged in post-discharge, explaining that you worked tremendously hard since your discharge from the Marine Corps.  You explained that, following your discharge, you attended several schools and academies and you have been steadily employed since your discharge, and you described your various employers and your responsibilities.   
 
In light of your assertion of a mental health condition, the Board received, and reviewed, the 11 July 2021 AO.  The AO concluded that, “it is my considered medical opinion the preponderance of objective evidence failed to establish Petitioner suffered from an unfitting mental health condition at the time of his military service, or his in-service misconduct could be attributed to an unfitting mental health condition.”  You received a copy of this AO, and on 19 August 2021, you submitted a rebuttal to the AO.  In your response, you indicated that you have developed a severe alcohol use disorder, and that your alcohol abuse was at the root of your misconduct while you were on active duty.  Your response was provided to the mental health professional who prepared the AO, who opined that your response did not change his conclusion. 
 
In review of all of your materials, the Board did not find an injustice in your record warranting relief.  After carefully reviewing your response to the AO, the Board concurred with the finding of the AO and determined that your misconduct while you were active duty was not mitigated by a mental health condition.  The Board also considered your post-discharge materials in accordance with the Wilkie Memo.  The Board determined that your post-discharge activities, while commendable, did not rise to the level to which relief would be granted.  Given the totality of the circumstances, as well as a review of your overall service record, 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, 
									 
9/9/2021
Executive Director