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

Docket No. 8623-18 
Dear : 
 
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 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 7 November 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 enlisted in the Marine Corps and began a period of active duty on 25 March 1976.  Approximately six months later, on 7 September 1976, you commenced a period of unauthorized absence (UA) lasting 233 days.  On 17 June 1977, you were convicted at special court-martial of the foregoing UA.  You received as punishment a suspended bad conduct discharge (BCD), reduction to the lowest pay grade, suspended restriction, and forfeitures of pay.  On 3 March 1978, you received non-judicial punishment (NJP) for two specifications of willful disobedience of a superior commissioned officer and one specification of disrespect toward a superior commissioned officer.  On 11 May 1978, you received NJP for disrespect toward a superior noncommissioned officer.  Two weeks later, on 31 May 1978, you began another period of UA and remained in a UA status for 159 days until your surrender to military authorities on 6 November 1978. 
 
On 7 November 1978, you were placed in pre-trial confinement.  On 16 November 1978, you submitted a voluntary written request for an undesirable discharge for the good of the service in lieu of trial by court-martial for your 159-day UA.  As part of this request, you admitted your guilt of the foregoing UA.  Prior to submitting this discharge request, you conferred with a qualified military lawyer, at which time you were advised of your rights and warned of the probable adverse consequences of accepting such a discharge.  As a result of this course of action, you were spared the stigma of a court-martial conviction, as well as the potential sentence of confinement and the negative ramifications of receiving a punitive discharge from a military judge.  On 28 November 1978, pursuant to your request, you were discharged from the Marine Corps with an other than honorable (OTH) characterization of service. 
 
The Board carefully weighed all potentially mitigating factors in your case, including your contentions that you were being threatened physically and mentally by your squad leader and company Executive Officer, that they both conspired to get you out of the Marine Corps, that you were “so scared all the time” that you were not able to perform your daily duties, that you were assigned to a medical platoon so they could get you out of their squad, that you got scared and went back home to New York, and that you did not have someone in the Marine Corps that you could turn to for guidance. 
 
However, the Board determined that your contentions and mitigating factors were insufficient to warrant upgrading your discharge or granting any other relief given your pattern of misconduct.  The Board also noted that there is no evidence in the record, and you submitted none, to support your contention that you were the victim of physical and mental abuse by your chain of command.  Accordingly, the Board determined that your misconduct that resulted in a SPCM conviction, and subsequent request to be discharged to avoid a second court-martial, support your discharge with an OTH characterization of service. 
 
Additionally, the Board reviewed your application under the recent guidance provided in the Under Secretary of Defense’s memorandum dated 25 July 2018 entitled, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations” (USD Memo).  The purpose of the USD Memo is to ease the process for veterans seeking redress and assist Boards for Correction of Military/Naval Records “in determining whether relief is warranted on the basis of equity, injustice, or clemency.”  The USD Memo noted that “increasing attention is being paid to…the circumstances under which citizens should be considered for second chances and the restoration of rights forfeited as a result of such convictions,” and that “BCM/NRs have the authority to upgrade discharges or correct military records to ensure fundamental fairness.”  The USD Memo sets clear standards and principles to guide BCM/NRs in application of their equitable relief authority, and further explains that boards shall consider a number of factors to determine whether to grant relief.  However, even in light of the USD Memo, the Board still concluded that, given the totality of the circumstances and your pattern of misconduct, your request does not merit 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 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,