DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 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 limitations 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 17 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 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 the advisory opinion (AO) furnished by a qualified mental health provider, which was previously provided to you. Although you were afforded an opportunity to submit an AO rebuttal, you did not do so. You enlisted in the Marine Corps on 20 February 2007. Your pre-enlistment physical examination on 7 February 2007 and self-reported medical history noted no neurologic or psychiatric conditions or symptoms. On 23 February 2010 you received non-judicial punishment (NJP) for failing to obey a lawful order, and drunk and disorderly conduct in the barracks. You did not appeal your NJP. On 11 March 2011 you received a “Page 11” counseling sheet (Page 11) documenting your NJP. The Page 11 expressly warned you that failure to take corrective action may result in judicial or adverse administrative action, including but not limited to administrative separation. Between April 2010 and May 2011, you received no less than seven (7) Page 11 entries in your service record stating you were eligible, but not recommended for promotion to Corporal due to either pending legal action, or a lack of leadership. On 27 May 2011 you were convicted at a Summary Court-Martial (SCM) of malingering. As punishment you receive fifteen days of confinement, a suspended reduction in rank, and restriction for fifteen days. On 15 June 2011 you underwent a medical evaluation related to your forthcoming administrative separation. The Medical Officer (MO) screened your medical records for evidence of PTSD and traumatic brain injury (TBI). The MO concluded that you have “not been diagnosed with or reported symptoms consistent with PTSD or TBI,” and that you were fully qualified for separation. Between 23 June 2011 and 6 August 2011, you bounced twenty-six (26) personal checks without sufficient funds at the Navy Exchange in that totaled approximately $2,735.52. On 25 October 2011 you submitted a voluntary written request for an administrative discharge in lieu of trial by court-martial for larceny, uttering 26 bad checks without sufficient funds, and for writing such checks and dishonorably failing to maintain funds in your bank account. Prior to submitting this voluntary discharge request you conferred with a qualified military lawyer, at which time you were advised of your rights and warned of the probable adverse consequences of accepting such a discharge. You indicated you were entirely satisfied with the advice you received from counsel. You expressly admitted that you were guilty of writing worthless checks by dishonorably failing to maintain funds in your bank account, but not the other two pending charges. You acknowledged if your request was approved, an other than honorable conditions (OTH) characterization of service was authorized. As a result of this course of action, you were spared the stigma of a court-martial conviction for your bad check offenses, as well as the potential sentence of confinement and the negative ramifications of receiving a punitive discharge from a military judge. Ultimately, on 3 December 2011 you were separated from the Marine Corps with an OTH discharge characterization and assigned an RE-4 reentry code. As part of the Board review process, the BCNR Physician Advisor who is a licensed clinical psychologist (Ph.D.), reviewed your contentions and the available records, and issued an AO dated 8 June 2021. The Ph.D. initially observed that there was no record of a diagnosis of, or reported symptoms of, either PTSD or TBI. The Ph.D. also observed that you were diagnosed on active duty with a different mental health condition for which you received treatment. The Ph.D. noted that the MO at Naval Health Clinic Hawaii in February 2011 opined that there was “not sufficient data to diagnose [you] with Post Traumatic Stress Disorder or Traumatic Brain Injury at this time,” and the MO recommended your discharge. The Ph.D. determined that your drunk and disorderly/drinking underage misconduct did not appear to be the result of utilizing a maladaptive coping skill and not the result of an attempt to cope with mental health symptoms. The Ph.D. also determined that your bad check offenses were not the typical misconduct displayed by a person suffering from PTSD or an adjustment disorder. The Ph.D. noted that although you provided VA clinical evidence of a post-discharge mental health assessment stating your PTSD likely stemmed from your military experience, the Ph.D. determined that such evidence runs counter to the available objective evidence contemporaneous to your active duty service. The Ph.D. determined that the VA provider’s observations were more indicative of the underlying stressors of your post-discharge presentation rather than an in-service associated mental health condition. The Ph.D. concluded by opining that while there is sufficient evidence that you exhibited behaviors associated with a mental health condition during your military service, the preponderance of the available evidence does not support the contention that your in-service misconduct should be mitigated by your mental health condition. The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warranted relief in your case in accordance with the Hagel, Kurta, and Wilkie Memos. These included, but were not limited to your contentions that: (a) you were severely injured in June of 2009 during OEF and you lost your spleen and several feet of intestines; (b) you have undergone multiple corrective surgeries for your injuries; (c) the VA has diagnosed you with PTSD; (d) you believe your PTSD and change in mental state of mind post-deployment directly resulted in your OTH discharge due to the Department of Defense’s unfamiliarity with PTSD and how to treat it; (e) you have continued treatment with PTSD post-service; (f) you should have instead been medically separated after sustaining life threatening injuries; (g) you believe your behavior as a result of your PTSD was inaccurately described and maliciously held against you by your command; (h) that your commanding officer applied the wrong laws and policies with respect to your medical diagnosis; and (i) you would have received a different discharge status if such errors had not been made. 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, notwithstanding your in-service and post-service mental health diagnoses, 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. As a result, the Board concluded that your misconduct was not due to mental health-related conditions or symptoms. The Board also concluded that the intentional misconduct underlying your discharge (writing checks without sufficient funds) was not the type of misconduct that would be mitigated by a mental health condition. Even if the Board assumed that your misconduct was somehow attributable to any mental health conditions, the Board unequivocally concluded that the severity and pervasiveness of your misconduct far outweighed any and all mitigation offered by such mental health conditions. The Board also determined 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 further determined, contrary to your contentions, that you were correctly processed from the Marine Corps for misconduct. In cases where medical or disability issues are present and the service member has committed misconduct, the Board noted that administrative separation processing for misconduct took absolute precedence over the medical board/Physical Evaluation Board (PEB) process. The Board also determined that personality disorders are characterized by a longstanding pattern of unhealthy behaviors, dysfunctional relationships, and maladaptive thinking patterns. They are not conditions considered unfitting or disabling, but render service members unsuitable for military service and consideration for administrative separation. Accordingly, the Board concluded that your diagnosed borderline personality disorder was a non-disabling disorder of character and behavior, and that it should not be considered a mitigating factor in your misconduct because it did not impair your ability to be accountable for your actions or behaviors. The Board also determined the record clearly reflected that your misconduct was willful and intentional and demonstrated you were unfit for further service. The Board 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 generally warranted for misconduct and 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 VA benefits, or enhancing educational or employment opportunities. The Board carefully considered any matters submitted regarding 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 serious misconduct clearly merited your receipt of an OTH characterization, and that your separation was in accordance with all Department of the Navy directives and policy at the time of your discharge. 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, 10/03/2021 Executive Director