Docket: 2362-21 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 you did not file your application in a timely manner, the statute of limitation 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 6 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). Additionally, the Board also considered advisory opinion (AO) furnished by a qualified mental health provider. You enlisted in the Marine Corps 27 March 2000. Your record reflects that you received an enlistment waiver for two separate pre-service 1997 criminal convictions in . Your pre-enlistment physical examination on 14 December 1999 and self-reported medical history both noted no psychiatric or neurologic conditions or symptoms. On 30 October 2000 you received a “Page 11” counseling sheet (Page 11) noting your deficiencies of sleeping in the classroom, failing to shave, being out of uniform, and being late/unauthorized absence (UA). The Page 11 warned you that a failure to take corrective action may result in administrative separation, limitation of further service, or disciplinary action. You did not make a Page 11 rebuttal statement. On 14 December 2000 you received non-judicial punishment (NJP) for failing to obey a lawful order by wearing an earring. You did not appeal your NJP. On the same day you received a Page 11 documenting your NJP with the same corrective action warning as your first Page 11. You did not make a Page 11 rebuttal statement. On 23 January 2001 you received a Page 11 for sleeping in the classroom and/or school grounds with the same corrective action warning as your last Page 11. You did not make a Page 11 rebuttal statement. On 24 January 2001 your commanding officer (CO) vacated the suspended portion of your NJP from December 2000 due to your continuing misconduct. On 5 February 2001 you received NJP for UA and for a failure to train. You did not appeal your NJP. On the same day you received a Page 11 documenting your NJP with the same corrective action warning as your previous Page 11 entries. You did not make a Page 11 rebuttal statement. On 21 February you received a Page 11 noting your substandard performance and disenrollment in the AIMS Maintenance Courts (MOS School). The Page 11 warned you that future academic disenrollments may result in administrative separation or limitation on further service. You did not make a Page 11 rebuttal statement. On 22 February 2001 you received NJP for malingering over a 21-day period of time between January and February 2001. You did not appeal your NJP. On 23 February 2001 you received a Page 11 documenting your NJP for malingering with the same corrective action warning as your previous post-NJP Page 11 entries. You did not make a Page 11 rebuttal statement. On 2 April 2002 you received NJP for insubordinate conduct. You did not appeal your NJP. On 25 September 2002 you received a Page 11 documenting your pattern of misconduct. The Page 11 warned you that any further deficiencies in performance and/or conduct may result in disciplinary action and in proceedings for administrative discharge that could result in administrative separation under other than honorable (OTH) conditions. You did not make a Page 11 rebuttal statement. On 22 February 2003 you received NJP for both UA and two separate specifications of failing to obey a lawful order. All of the misconduct for this NJP hearing occurred in September 2002. On 27 July 2003 you received NJP for insubordinate conduct and assault. You did not appeal your NJP. On 21 August 2003 you received a Page 11 for both UA and for disobeying a lawful order by not adhering to the 48-hour liberty boundary. On 4 September 2003 you were notified that you were being processed for an administrative discharge by reason of misconduct due to a pattern of misconduct. You consulted with counsel and elected to request an administrative separation board (Adsep Board). In the interim, your CO recommended that you be administratively separated from the Marine Corps. The CO specifically stated: has displayed numerous disciplinary infractions during his time in the Marine Corps and has become a burden to SVC Co over the past year. During that time, he has put a strain on the combat effectiveness and morale of this unit. …lacks the integrity, dependability, professionalism, maturity, and other fundamental traits required of a Marine. Without exception, his conduct and simple unwillingness to be where he is supposed to be at the appointed time has adversely impacted on the productivity, morale, and mission accomplishment of this company. The officers, SNCO's and NCO's within his platoon have spent an inordinate amount of time and effort trying to salvage this Marine. Simply put is unwilling to embrace our core values and conform to military standards; therefore, he has no redeeming value and is not worthy of retention. Administratively separating would be in the best interest of the United States Marine Corps. On 6 November 2003 an Adsep Board convened in your case. At the Adsep Board you were represented by a Marine Corps Judge Advocate. Following the presentation of evidence and witness testimony, the Adsep Board members unanimously determined that you committed the misconduct as charged. Subsequent to the misconduct finding, the Adsep Board members unanimously recommended that you be separated from the Marine Corps with an OTH characterization of service. Ultimately, on 14 January 2004 you were separated from the Marine Corps with an OTH discharge characterization for a pattern of misconduct and assigned an RE-4 reentry code. On 27 April 2006 the Naval Discharge Review Board (NDRB) determined that your discharge was proper as issued and that no change was warranted. You did not raise any mental health contentions or concerns with your NDRB application. On 26 April 2017 the VA granted you a service-connection for treatment purposes only for PSTD. On 12 February 2019 the NDRB denied you relief a second time. You contended, in part, that your misconduct was the result of traumatic experiences during recruit training and combat. The NDRB expressly rejected your contentions and concluded: …though the Applicant may feel that PTSD was the underlying cause of his misconduct, the record reflects willful misconduct that demonstrated he was unfit for further service…The evidence of record did not show that the PTSD was a sufficient mitigating factor to excuse the Applicant’s conduct or accountability concerning his actions…The records received from the VA failed to document any request for evaluation, any diagnosis, or any findings of PTSD or other mental health concerns…Moreover, the Applicant did not provide any evidence of a diagnosis of PTSD from any other private mental health treatment provider to document his claim. As part of the Board review process, the Board’s Physician Advisor who is a licensed clinical psychologist (Ph.D.), reviewed your contentions and the available records, and issued an AO dated 2 June 2021. The Ph.D. initially observed that you completed a post-deployment questionnaire covering your time in Kuwait from 8 February 2003 to 8 August 2003 where you endorsed symptoms related to depression/PTSD. The Ph.D. noted that no follow-up appeared to be warranted and that you expressly endorsed “no” when asked if you were interested in receiving help for stress, emotional, alcohol, or family problems. The Ph.D. also noted that the unsworn statement you made at your Adsep Board did not reference any mental health symptoms or concerns and indicated your misconduct was the result of certain issues with a superior. The Ph.D. further noted that your documentation from the Department of Veterans Affairs (VA) did not provide any details regarding any PTSD-related traumas or how you met the criteria for the PTSD diagnosis. The Ph.D. determined that your in-service records did not contain evidence of a mental health diagnosis but only that you endorsed symptoms associated with a mental health condition in 2003. The Ph.D. concluded by opining that you exhibited behaviors associated with a mental health condition on active duty and some, but not all, of your misconduct may be mitigated by a mental health condition. The Ph.D. further concluded that wearing an earring and malingering (without further details) would not be mitigated by mental health symptoms/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 Kurta, Hagel, and Wilkie Memos. These included, but were not limited to: (a) the role of your PTSD with the misconduct underlying your discharge has never been fully considered, (b) military policy regarding PTSD cases and other mental health conditions has changed significantly, (c) you have never been afforded proper liberal consideration by any review board hearing your case, (d) your demonstrated rehabilitation warrants consideration for an upgrade based on clemency, (e) you were subject to cruelty and maltreatment during initial recruit training that triggered your initial symptoms of traumatic stress response, (f) your trauma-related stress caused you self-medicate with alcohol, (g) upon return from your 2003 deployment you reported certain PTSD symptoms that caused a period of decreased performance and a pattern of minor disciplinary infractions leading to your separation, (h) your discharge characterization is disproportionately harsh, (i) your case is the exact type of case that merits relief under the Hagel and Kurta Memos, (j) the Wilkie Memo also demonstrates that relief is in the interests of equity, (k) post-service you have become a stable and productive member of your community and have had a steady employment history, (l) your character reference letters clearly demonstrate the kind of man you have become and illustrate that you have been rehabilitated, and (m) the Marine Corps failed to diagnose and treat your PTSD in 2003, despite the presence of symptoms. However, given the totality of the circumstances, the Board determined that your request does not merit relief. In accordance with the Hagel, Kurta, and Wilkie Memos, the Board gave liberal and special consideration to your record of service, and your contentions about any traumatic or stressful events you experienced and their possible adverse impact on your service. However, the Board concluded that there was no nexus between any mental health conditions and/or related symptoms and your misconduct, and determined that there was insufficient evidence to support the argument that any such mental health conditions mitigated the misconduct that formed the basis of your discharge. The Board observed that your available active duty records did not contain evidence of a mental health diagnosis. The Board noted that although you stated you were experiencing certain mental health symptoms post-deployment, you expressly indicated that you did not desire to seek treatment or counseling for such symptoms. The Board concluded that although you have a service-connection for PTSD, active duty records contemporaneous to your service lacked sufficient evidence to establish a nexus between your mental health conditions/symptoms and your in-service misconduct. As a result, the Board concluded that your misconduct prior to your deployment was not attributable to, or mitigated by, mental health-related conditions or symptoms. Even if the Board assumed that your misconduct was somehow attributable to any mental health conditions, the Board unequivocally concluded that the severity of your pattern of misconduct far outweighed any and all mitigation offered by such mental health conditions. The Board determined the record clearly reflected that your misconduct was willful and intentional, and demonstrated you were unfit for further service. Additionally, the Board also determined that there was no convincing evidence presented that your initial recruit training experience or life stressors was extraordinary or unique to trigger mental health symptoms or any traumatic stress response, or otherwise result in meeting the diagnostic criteria for a mental health condition. Moreover, the Board concluded that certain misconduct you committed, particularly the multiple orders violations, the failure to train, and malingering for three weeks, are not the types of offenses that would be excused by mental health conditions even with liberal consideration. The Board also concluded that the evidence of record did not demonstrate that you were not mentally responsible for your conduct or that you should not be held accountable for your actions. The Board observed that character of military service is based, in part, on conduct and overall trait averages which are computed from marks assigned during periodic evaluations. Your overall active duty trait average was 3.90 in conduct. Marine Corps regulations in place at the time of your discharge required a minimum trait average of 4.0 in conduct (proper military behavior), for a fully honorable characterization of service. The Board concluded that your conduct marks during your active duty career were a direct result of your pattern of serious misconduct which justified your OTH characterization of discharge. The Board further noted that there is no provision of federal law or in Navy/Marine Corps regulations that allows for a discharge to be automatically upgraded after a specified number of months or years. The Board did not believe that your record was otherwise so meritorious as to deserve a discharge upgrade and determined that Marines should receive no higher discharge characterization than is due. The Board determined that characterization under OTH conditions is appropriate when the basis for separation is the commission of an act or acts constituting a significant departure from the conduct expected of a Marine. Lastly, absent a material error or injustice, the Board declined to summarily upgrade a discharge solely for the purpose of facilitating benefits from the VA, or enhancing educational or employment opportunities. The Board carefully considered any matters submitted regarding your character, your post-service conduct and accomplishments, however, even in light of the Wilkie Memo and reviewing the record holistically, the Board still concluded that given the totality of the circumstances your request does not merit relief. Accordingly, the Board determined that there was no impropriety or inequity in your discharge, and even under the liberal consideration standard, the Board concluded that your pattern of serious misconduct clearly merited your receipt of an OTH. 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, 8/14/2021 Executive Director