DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
JDR
Docket No: 3901-14
10 April 2015
This is in reference to your application for correction of your
naval record pursuant to the provisions of title 10 of the
United States Code, section 1552.
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
8 April 2015. The names and votes of the members of the panel
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, your naval record, and applicable statutes,
regulations, and policies.
After careful and conscientious consideration of the entire
record, the Board found the evidence submitted was insufficient
to establish the existence of probable material error or
injustice.
You enlisted in the Marine Corps, began a period of active duty
on 18 November 1981, and satisfactorily served without
disciplinary incident for about eight months. However, during
the period from 30 July to 13 September 1982, you received two
nonjudicial punishments (NJP) for absence from your appointed
place of duty, disobeying a lawful order, dereliction in the
performance of duties, and making false statements. On
7 December 1982, you were convicted by general court martial
(GCM) of failure to obey an order or regulation. You were
sentenced to confinement at hard labor for seven months,
forfeiture of all pay and allowances, reduction in grade to E-1,
and a bad conduct discharge (BCD). The BCD was subsequently
approved at all levels of review, and on 25 October 1984, you
were so discharged.
The Board, in its review of your entire record and application,
carefully weighed all potentially mitigating factors, such as
your record of service and desire to upgrade your discharge.
The Board also considered your assertions of a post-traumatic
stress disorder (PTSD) diagnosis and that the GCM sentence was
too severe in light of your drug related charges. Nevertheless,
based on the information currently contained in your record, the
Board concluded these factors were not sufficient to warrant an
upgrade of your discharge. Further, the Board considered your
assertion of PTSD in light of the Secretary of Defense's
September 3, 2014 guidance to Boards for Correction of Military
records regarding discharge upgrade requests by veterans
claiming PTSD. The Board liberally considered whether your PTSD
was a causative factor in the misconduct that resulted in your
discharge. After full and careful consideration of the matter,
the Board determined that there was insufficient evidence in the
record, and you provided none, to support a conclusion that a
causal relationship with the PTSD symptoms and misconduct
existed. Specifically, the Board concluded that your misconduct
was not caused by your PTSD and further determined that, even if
there was a nexus between the PTSD and the misconduct, the
severity of the misconduct would substantially outweigh any
mitigation created by your PTSD. Finally, in regard to your
assertion on the severity of the sentence imposed at your GCM,
the Board concurred that the adjudged sentence in your GCM was
fair and equitable to the crime committed. Accordingly, your
application has been denied.
It is regretted that the circumstances of your case are such
that favorable action cannot be taken. You are entitled to have
the Board reconsider its decision upon submission of new and
material evidence within one year from the date of the Board’s
decision. New evidence is evidence not previously considered by
the Board prior to making its decision in your case. 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,
ROBERT J. O'NEILL
Executive Director
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