Docket No:  1612-21 
             
  
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.     
  
A three-member panel of the Board, sitting in executive session, considered your application on 20 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 the 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).  In addition, the Board considered the advisory opinion (AO) furnished by a qualified mental health professional dated 20 July 2021, which was previously provided to you. 
  
You enlisted in the Marine Corps and began a period of active duty on 24 August 1972. During the period from 5 January to 24 November 1973, you received seven nonjudicial punishments (NJPs) for three periods of unauthorized absence (UA), two instances of being absent from your appointed place of duty, larceny of six sets of utilities, three instances of disobeying a lawful order, and breaking restriction.  On 8 January 1974, you were counseled concerning your frequent involvement of discreditable nature, and warned that further misconduct could result in administrative discharge action.  On 10 June 1974, you received NJP for 12 days of UA.  On 20 September 1974, you submitted a written request for an undesirable discharge for the good of the service in order to avoid trial by court-martial for a brief period of UA, disrespect towards a commissioned officer, disobedience of a commission officer, and stealing U.S. currency from another Marine.  Prior to submitting this request for discharge, you conferred with a qualified military lawyer, were advised of your rights, and warned of the probable adverse consequences of accepting such a discharge.  Subsequently, your request for discharge was granted and on 1 November 1974, you received an other than honorable discharge in lieu of trial by court-martial.  As a result of this action, you were spared the stigma of a court-martial conviction and the potential penalties of a punitive discharge and confinement at hard labor.  
  
A qualified mental health professional reviewed your request for correction to your record and provided the Board with an AO regarding your assertion that you was suffering from Post-Traumatic Stress Disorder (PTSD) during your service.  The AO noted that based on the available evidence, the preponderance of objective evidence failed to establish you suffered from PTSD at the time of your military service, or your in-service misconduct could be attributed to PTSD or other mental health conditions. 
 
The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in your case in accordance with the Wilkie Memo.  These included, but were not limited to your assertions that you were subjected to racial discrimination, and as a result, started misbehaving, and it became hard for you to accept orders from authority, which led to your discharge.  You also indicated you experienced issues associated with PTSD and mental health, and felt you were not given respect due, so you had to fight back.  Based upon this review, the Board concluded these potentially mitigating factors were insufficient to warrant relief.  Specifically, the Board determined that your misconduct, as evidenced by your eight NJPs, you were warned of the consequences of further misconduct after your seventh NJP, the referral of charges to a court-martial, and your request for discharge outweighed these mitigating factors.  Additionally, the Board concurred with the AO that based on the available evidence, the preponderance of objective evidence failed to establish you suffered from PTSD at the time of your military service, or your in-service misconduct could be attributed to PTSD or other mental health conditions.  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, 
                                                                              
9/27/2021
Executive Director