DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 665-21 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 relevant portions of your naval record and your application, 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 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 16 July 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, Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to its 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 14 December 2009. You participated in Combat Operations in Afghanistan from 28 January 2012 through 19 August 2012. On 29 August 2012, you received nonjudicial punishment (NJP) for wrongful use, possession of a controlled substance on or about 24 July 2012, by wrongfully using Coricidin HBP with the intent to get high while aboard Camp Leatherneck, Afghanistan, and failure to obey an order or regulation by wrongfully using a controlled substance with the intent to get high in a combat environment. On 10 January 2013, you were found guilty at summary court-martial for wrongfully possessing synthetic cannabinoids on or about 23 September 2012 and 18 October 2012, and wrongful use of synthetic cannabinoids (spice) on or about 23 September 2012 and 18 October 2012. On 31 January 2013, you requested separation in lieu of trial by court-martial with an other than honorable discharge. On 31 January 2013, Trial Counsel endorsed your request and forwarded it recommending approval. Your chain of command recommended approval, and the Commander, 3d Marine Logistics Group approved your request for separation in lieu of trial by court-martial. Thereafter, on 22 March 2013 and 10 April 2013, you were found guilty at special court-martial for a period of unauthorized absence (UA) from 18 February 2013 through 1 March 2013, violating a lawful general order by using spice two times and violating a lawful order issued by a Major, and escaping from the custody of a Staff Sergeant and a Lance Corporal. The Court sentenced you to confinement for 240 days and a bad conduct discharge. On 29 August 2013, the US Navy Marine Corps Court of Criminal Appeals affirmed the findings and sentence as approved by the Convening Authority. On 6 November 2013, Navy and Marine Corps Appellate Leave Activity approved the sentence of 240 days and affirmed the bad conduct discharge. On 7 November 2013, you were discharged from the Marine Corps with a bad conduct discharge. In your application to the Board, you request that your discharge be upgraded from a bad conduct discharge. You state you would like an upgrade and would like to be able to use your GI Bill. You assert that you are entitled to an upgrade because you suffer from various service connected psychiatric disorders. You note that you found it very difficult to even build up the courage to say that you have a mental health disorder. On 26 February 2020, the Board of Veterans Appeals (BVA) found that your acquired psychiatric disorder, variously diagnosed as anxiety, depression, mood disorder, unspecified trauma, stressor related disorder and unspecified bipolar disorder, began during active duty service. Furthermore, a 6 November 2020 letter from the Department of Veterans Affairs (VA) states that you have a combined service-connected disability rating of 60%. You provide information about your post-discharge achievements to include participation in Joint Apprentice Training, Pipefitters with course work at of Technology. 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 Medical Advisor reviewed your request, and issued an Advisory Opinion dated 7 June 2021. The Advisory Opinion noted that the BVA decision that confirmed service connection for mental health condition(s) was based on documentation/treatment records that indicated prior service diagnoses of depression, anxiety, opioid dependence, and oppositional defiance disorder as well as suicidal ideation before and during military service. These source records, however, were not provided with the application to the Board. The Advisory Opinion found that it is possible that your military service exacerbated your prior-service mental health symptoms and that the in-service exacerbation of symptoms does not mitigate your non-disclosure of previous mental health treatment. However, based on the available evidence, the Advisory Opinion concluded that there is sufficient evidence that you exhibited behaviors associated with a mental health condition during your military service and that your misconduct may be mitigated by your mental health condition. The Board, in its review of your entire record and application, carefully weighed all potentially mitigating factors, including the information you provided about service-connected mental health struggles, the conclusions of the Advisory Opinion, and your post discharge educational achievements and desire to access GI Bill benefits. The Board also considered your request under the guidance of the Wilkie memorandum to determine whether clemency is appropriate. The Board noted that the Advisory Opinion does find that there is sufficient evidence that you exhibited behaviors associated with a mental health condition during your military service and that your misconduct may be mitigated by your mental health condition. The Board considered the Advisory Opinion’s finding and noted that your submissions to the BVA indicate that you suffered from pre-service mental health conditions that did not appear to have been disclosed prior to your enlistment. The Board found that while you may have been suffering from a mental health condition at the time of your military service, the frequency and nature of your misconduct could not be sufficiently mitigated to merit an upgrade to your characterization of service. The Board took particular note of your wrongful use of a controlled substance in a combat environment and your escape from custody when the Board made its decision that even when applying liberal consideration, an upgrade is not warranted. The Board also determined that given the serious of your misconduct as evidenced by a NJP, summary court martial, and special court martial conviction, that your post-discharge efforts and contributions did not establish a sufficient basis for clemency and a resultant upgrade. The Board found that your bad conduct discharge was issued without error or injustice, and that the totality of the information in your record supported your current discharge even in consideration of the mitigating factors and positive contributions surrounding your service and your post-discharge conduct. Accordingly, given the totality of the circumstances, the Board determined that your request does not merit relief. 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, 8/23/2021 Executive Director