DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 

Docket No: 4945-18                                     
Ref: Signature Date 

This letter 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 the entire record, the Board for Correction of Naval Records (Board) found that 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, sitting in executive session, considered your application on 14 August 2019.  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, relevant portions of your naval record, as well as applicable statutes, regulations, and policies. 

You signed a Marine Corps Reserve enlistment contract in which you were advised that you were required to attend and participate satisfactorily in 48 scheduled drills and to preform not less than 14 days of Active Duty for Training (ACDUTRA) each fiscal year.  You honorably completed a period of initial active duty training (IADT) from 23 August 1993 to 20 April 1994.  On 21 April 1994, you joined your reserve-drilling unit.  Subsequently, on 29 January 1996, you were notified by certified mail of pending administrative separation processing to separate you from the naval service with an other than honorable (OTH) characterization of service due to unsatisfactory participation by missing 60 unexcused drills.  In the certified notification, you were advised of your procedural rights to consult with and be represented by legal counsel, and to present your case to an administrative discharge board (ADB). You were further advised that your failure to respond to the notice would be deemed a waiver by you of your administrative rights.  Your service record indicates that when you failed to respond to the notice, your commanding officer (CO) stated in his separation recommendation that you had “made no effort to regain satisfactory drill status,” that “although he has been offered assistance, he does not want to be a Marine,” that all “attempts to salvage [you] have failed,” that you were “fully aware of [your] rights and the consequences of [your] actions,” that you “made a personal decision not to participate in weekend drills,” and that you “refused to fulfill the terms as outlined in [your] enlistment contract.”  Your CO recommended that you be discharged under OTH conditions by reason of misconduct due to unsatisfactory participation.  On 12 June 1996, the separation authority approved and directed your OTH discharge due to unsatisfactory participation.  On 19 June 1996, you were so discharged.

The Board carefully weighed all potentially mitigating factors in your case, including your contention that you were unable to fulfill you reserve requirements due to the ninety-minute driving distance from your residence to your reserve drilling unit, and that you were considering pursuing a career as a stock broker or financial advisor on “Wall Street.”  You also contend that when you consulted an unidentified “Navy JAG at ,” about your circumstances, he “said don’t show up” and you “followed his orders.”  However, the Board concluded that these factors were insufficient to warrant relief in your case because of the seriousness of your repeated failure to perform ordered drills.  Regarding your contentions, the Board relies on a presumption of regularity to support the official actions of public officers and, in the absence of substantial evidence to the contrary, will presume that they have properly discharged their official duties.  Your commute was within the limits considered a reasonable distance.  The Board noted there was nothing in your record, and you did not submit any supporting documentation, to show that your commuting problem could not be resolved through standard military channels.  Nor is there any support in the record for you contention that a Navy JAG advised you to disregard lawful orders, or that the advice constituted a lawful order by anyone in authority to countermand the standing orders to you by your CO to perform scheduled drills.  Accordingly, the Board in its review discerned no probable material error or injustice in the discharge.

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 the 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,