DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 3856-21 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 3 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). 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 began a period of active duty on 8 August 1989. On 16 January 1991, you received nonjudicial punishment (NJP) for a period of unauthorized absence (UA) from 4 to 13 January 1991. On 12 June 1991, you received a second NJP for failure to go at the prescribed time to the Battalion Substance Abuse Counseling Officer’s (SACO’s) Office, wrongfully consuming alcohol while under the age of 21, operating a motor vehicle while under the influence of alcohol and drunk and disorderly conduct. On 24 June 1991, a counseling entry was documented into your record. On 27 June 1991, you were convicted at summary court martial proceedings for UA and breaking restriction. On 18 September 1991, you received a third NJP for UA, driving on base while on Base Revocation, possessing an unregistered, loaded .38 caliber pistol while aboard , and making a false statement by giving a false name, social security number, and date of birth. On 6 January 1992, you were convicted at special court martial proceedings of failure to go to your appointed place of duty, and a period of UA from 11-15 October 1991, pulling the handle of a fire extinguishing system without proper authority, and UA from 27 December 1991 until 2 January 1992. The Court sentenced you to 30 days confinement, forfeiture of $500 ppm for one month, and a Bad Conduct Discharge (BCD). In your application to the Board, you request an upgrade to your BCD. You contend that: (a) throughout boot camp and Marine Combat Training, you had exemplary conduct; (b) after boot camp, you were sent to Tank Crewman School and then to ; (c) while at , a tank track block broke off a tank and fell onto your ankle, causing a severe injury that would change your life; (d) you were waiting for your Physical Evaluation Board (PEB) and were asked by your Commanding Officer to go to for 1812 Tank Training; (e) although you reminded the Commanding Officer of your PEB, you were shipped out anyway; (f) you had surgery in December 1990, and turned to alcohol abuse and prescription medication to deal with the constant pain; (g) your misconduct was the result of poor judgment on your part but the depression was due to your injury; (h) upon your discharge, you continued to self-medicate with both drugs and alcohol, and that youthful indiscretion and an inability to find ways to adequately cope with the pain contributed to your in-service misconduct; (i) since your discharge, you enrolled in barber school and eventually opened your own shop, and you work with at risk youth and have taught group fitness classes; and (j) in November 2013, you received a certificate from the Allied Institute of Professional Studies and have maintained employment working as a Sterile Processing Technician. Additionally, you ask that the Wilke Memo be applied to your request, and that your prosperous life post-service and your hard work ethic during your time in the Marine Corps be taken into consideration. In support of your application, you provide in part your resume, school certification, a personal statement and character letters. The Board reviewed your available record and the information you provided with your application in consideration of your statement that you suffered from depression due to your ankle injury. The Board determined that your record does not appear to reflect evidence of a diagnosed mental health condition and that you did not provide post-service medical information. The Board found that there is insufficient evidence to establish that you suffered from a mental health condition (depression) at the time of your military service or that your in-service misconduct could be mitigated by a mental health condition. 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 statements and contentions referenced above. In evaluating your petition, the Board noted that you were found guilty of various infractions at three NJPs, a summary court martial, and a special court martial. The Board noted that your infractions included you being found guilty of possessing an unregistered and loaded firearm and making false statements. The nature of these two infractions were such that the Board determined that they were not sufficiently mitigated by the challenges you may have faced after your ankle injury nor were they mitigated by any self-medication that may have occurred due to constant and ongoing pain. Accordingly, the Board concluded that clemency is not appropriate in your situation given the nature and frequency of the misconduct reflected in your record, and found that your BCD was issued without error or injustice. 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, 10/02/2021 Executive Director