DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 
 
Docket No: 2038-21 
Ref: Signature Date 

Dear Petitioner: 

This is in reference to your application for correction of your naval record pursuant to Section 1552 of Title 10, United States Code. After careful and conscientious consideration of relevant portions of your naval record and your application, the Board for Correction of Naval Records (Board) found the evidence submitted 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 20 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, 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. 

You enlisted in the Marine Corps and began a period of active duty on 1 March 2004. On 3 May 2005, you were found guilty at general court-martial for violation of Uniform Code of Military Justice (UCMJ) Article 86 (unauthorized absence from 12 July 2004 to 7 September 2004) and Article 121 (two specifications, to include stealing a Fort Sill National Bank Visa Check Card from a fellow Marine and between 15 July 2004 to 19 July 2004, stealing US currency, various clothing and movie tickets a value of $5,597.79). The Court sentenced you to confinement for 18 months, forfeiture of all pay and allowances, and a bad conduct discharge. On 12 December 2006, the Navy and Marine Corps Appellate Leave Activity approved the sentence of confinement, forfeiture of pay and allowances, and the bad conduct discharge. On 13 April  2006, you were notified of the completion of the Appellate Review. You were discharged from the Marine Corps on 13 December 2006, on the basis of the Court Martial conviction, and received a bad conduct discharge and a reentry (RE) code of RE-4. 

In your application to the Board, you request an upgrade to your bad conduct discharge characterization so that you may qualify for Veterans Affairs (VA) benefits. You state you were suffering from undiagnosed and untreated mental illness (bipolar disorder). You assert that the mental illness caused you to make erratic decisions and to suffer severe instability in moods and thoughts. You contend that once you were diagnosed, you were placed on extreme sedatives and were told to sign for a bad conduct discharge. You state that you have struggled for years trying to balance your mental health issues and have been denied services from the VA. You provide a 12 November 2020 Decision Document in which the VA found “(a) duty to assist error has been identified during a Higher Level Review for mental health issues.” 

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 Licensed Clinical Psychologist reviewed your request, and issued an Advisory Opinion dated 26 May 2021. The Advisory Opinion noted that your in-service records do not contain evidence of a diagnosis of a mental health condition or psychological/behavioral changes, which may have indicated a mental health condition. Additionally, the Advisory Opinion considered that there is no indication that your counsel referred you to mental health resources for a mental health evaluation. While the VA’s decision indicated possible mental health treatment during your military service, the records were not provided. The Advisory Opinion determined that the preponderance of available objective evidence failed to establish that you were diagnosed with a mental health condition, suffered from a mental health condition at the time of your military service or that your in-service misconduct could be mitigated by a mental health condition. The Advisory Opinion was provided to you, and you were given 30 days in which to submit a response. 

In your 21 June 2021 response, you stated that you were clearly diagnosed with a mental illness and its onset occurred during your active duty service. You contend that you have not been able to get copies of your in-service diagnosis and treatment and that had you know prior to enlisted that you had an untreated and severe mental illness, you would not have enlisted. You also assert that you were being treated with extremely strong sedatives and mood stabilizers while you were in the brig, and had you know you were agreeing to a bad conduct discharge and the loss of all benefits, you would never have agreed. Finally, you assert that you relied on poor legal advice. 

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. The Board agreed substantively with the conclusions of the Advisory Opinion and found that you did not provide sufficient evidence to establish that you suffered from a mental health condition while you were in the Marine Corps that may have mitigated your misconduct. The Board considered your contention that you were heavily medicated, did not knowingly plead guilty to the charges at general court martial, and that you may have received poor or ineffective counsel. The Board noted that your service record reflects that the general court martial proceedings received Appellate Review. The Navy Marine Corps Appellate Leave Activity affirmed the approved sentence on 12 December 2006, indicating that the legal proceedings (to include your receipt of appropriate representation) were properly executed. The Board found that your bad conduct discharge was supported by your general court martial conviction for violating both Articles 86 and 121. The Board found that even in consideration of your contention that you were suffering from an undiagnosed mental health condition, which may have existed prior to service, that the severity of the misconduct as evidenced by the length of your UA and by stealing from a fellow Marine supports your current discharge. The Board concluded that your bad conduct discharge was issued without error or injustice, and that you are not entitled to clemency and a resultant upgrade to the bad conduct discharge. Accordingly, given the totality of the circumstances, the Board determined that 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, 
8/31/2021 

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