Docket No: 2085-21 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 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 23 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 2 May 2021 advisory opinion (AO) from a mental health professional, a copy of which you received and to which you did not provide a response. The Board determined that your personal appearance, with or without counsel, would not materially add to their understanding of the issues involved. Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record. You enlisted in the Marine Corps and commenced a period of active duty on 18 January 1982. On 11 August 1983, you received nonjudicial punishment for possession of marijuana. On 19 September 1983, you received a written warning concerning a period of unauthorized absence. On 24 February 1984, you were convicted by a special court-martial for unauthorized absence, possession with intent to distribute cocaine, and distributing cocaine. As part of your court-martial sentence, you were awarded a bad conduct discharge. On 4 October 1985, you were so discharged. In 2010, you filed a petition with this Board contending that your misconduct should have been mitigated by your youth and your medical condition. On 25 January 2011, this Board denied your petition. 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 you were unjustly accused of selling cocaine. In support of your petition, you submitted a letter from a medical professional describing that you have PTSD as a result of your military service. In light of your inclusion of the letter from a mental health professional, the Board received, and reviewed, the 11 July 2021 AO. The AO explained, Petitioner’s in-service records did not contain evidence of a diagnosis of a mental health condition. Although Petitioner provided documentation of a post-discharge PTSD diagnosis, there are no details describing his symptoms or how the symptoms are linked to his PTSD/misconduct. Petitioner did state he experienced a decline in mental health after he was placed in the brig; however, this would have occurred after the misconduct and thus would not mitigate the behavior. The AO concluded, “it is my considered medical opinion the preponderance of available objective evidence failed to establish Petitioner suffered from a mental health condition at the time of his military service or his in-service misconduct could be mitigated by a mental health condition.” You provided a response to the AO, which the Board carefully reviewed. The Board noted that you did not directly contradict the findings of the AO. Rather, you reiterated that you were convicted of a crime that you did not commit. In review of all of your materials, the Board did not find an injustice in your record warranting relief. The Board concurred with the finding of the AO. The Board also noted that it is not an investigative body, and found that you did not provide evidence to support your contention that you were unjustly accused of a crime that you did not commit. Given the totality of the circumstances, as well as a review of your overall service record, which included the imposition of nonjudicial punishment, a written warning, and a special court-martial conviction, 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