DEPARTMENT OF THE NAVY
BOARD FOR CORRECTION OF NAVAL RECORDS
701 S. COURTHOUSE ROAD, SUITE 1001
ARLINGTON, VA 22204-2490
SIN
Docket No: 4376-14
20 April 2015
This is in reference to your application for correction of your naval
record pursuant to the provisions of title i0 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
15 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 injustics.
You enlisted in the Marine Corps and began a period of active duty on
21 March 1983. On 15 August 1984 you submitted a written request for
an other than homorable (OTH) discharge in order to avoid trial by
court-martial for 158 days of wmauthorized absence (UA). Prior te
submitting this request for Giscnarge, you conferred with a qualified
military lawyer, were advised of your rights. and warned of the
robable adverse consequences of accepting such a discharge.
Subsequently, your request for discharge was granted and om 27 August
1984, you received an OTH discharge in lieu of trial by court-martial.
AS a result of this action, you were spared the stigma of a ccurt-
martial conviction and the pctential penalties of a punitive discharge
and confinement at hard labor.
The Board, in its review of your entire record and application,
carefully weighed all potentially mitiaating factors, such as your
record of service, desire to upgrade your discharge, and that you are
seeking treatment For Post-Traumatic Stress Disorder (PTSD).
Nevertheless, the Board concluded these factors were not sufficient to
warrant recharacterization of your discharge given your lengthy period
of UA. The Board believed that considerable clemency was extended to
you when your request for discharge was approved. The Board also
concluded that you received the benefit of your bargain with the
Marine Corps when your request for discharge was granted and should
not be permitted to change it now. Accordingly, your application has
been denied.
Your assertion that you are seeking treatment for PTSD was fully and
carefully considered by the Board in light of the Secretary of Defense
memorandum, “Supplemental Guidance to Military Boards for Correction
of Military/Naval Records Considering Discharge Upgrade Request by
Veterans Claiming PTSD” of 3 September 2014. The memorandum describes
the difficulty veterans face on "upgrading their discharges based on
claims of previously unrecognized" PTSD. The Secretary explains that
since PTSD was not previously recognized as a diagnosis at the time of
service for many veterans, and diagnoses were often not made until
after service was completed, veterans were constrained in their
arguments that PTSD should be considered in mitigation for misconduct
committed or were unable to establish a nexus between PTSD and the
misconduct underlying their discharge. The Board reviewed your
application and gave liberal consideration of your assertion that you
are seeking treatment for PTSD as a mitigation factor in your
misconduct. They weighed the severity of your misconduct that formed
the basis for your discharge. In making this decision, the Board
closely examined both the language and intent of the policy
memorandum, and felt that your misconduct did not warrant relief.
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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