DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 9656-18/ 11629-11 This is in reference to your reconsideration request received on 31 July 2018. You previously petitioned the Board for Correction of Naval Records (Board) and were advised in our letter of 28 June 2012 that your application had been denied. Your request for reconsideration was reviewed in accordance with Board procedures that conform to Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004). After careful and conscientious reconsideration, the Board found the evidence submitted was insufficient to establish the existence of probable material error or injustice. Consequently, your application has been denied. Because your application was submitted with a new statement and evidence that was not previously considered, the Board reconsidered your request. Your request was carefully examined by a three-member panel of the Board, sitting in executive session, on 26 November 2019. The names and votes of the members of the panel will be furnished upon request. Documentary material considered by the Board consisted of your applications, together with all material submitted in support thereof, available portions of your naval record, and applicable statutes, regulations, and policies, as well as a 9 October 2019 advisory opinion (AO) and your 19 November 2019 rebuttal response. Regarding your request for a personal appearance, the Board determined a personal appearance with or without counsel will not materially add to their understanding of the issues involved. Therefore, the Board determined a personal appearance was not necessary and considered your case based on the evidence of record. You were mobilized from the Marine Corps Ready Reserve in February 2004. Your activation was extended on 4 January 2005 for a period of 12 months in support of Operation Enduring Freedom. In April 2005, you were relieved of your duties as the 2d Marine Division Inspector due to an allegation you improperly used your government computer. On 1 November 2005, you received nonjudicial punishment (NJP) after pleading guilty to charges of conduct unbecoming an officer and a gentleman for possession of nude photographs on a government computer and communicating sexually explicit language to the wife of an enlisted Marine and a woman not your wife. The Report of NJP was submitted on 15 November 2005 recommending you be required to show cause for retention. On 3 January 2006, you were demobilized and transferred to the individual ready reserve (IRR). On 9 February 2006, a board of inquiry (BOI) recommended you be separated with an other than honorable (OTH) characterization of service. On 7 March 2006, the Deputy Commandant of the Marine Corps for Manpower and Reserve Affairs, concurring with the BOI’s recommendation, forwarded the BOI report to the Assistant Secretary of the Navy (Manpower and Reserve Affairs), recommending your OTH discharge due to your “conduct and judgment which fell far below that expected of a Marine officer of his grade and experience”, noting it was not a “one-time lapse in judgment, but rather a repetitive pattern of debauchery and a significant and disturbing abuse of position and responsibility” as a division inspector. On 7 March 2006, the discharge authority approved the recommendation and directed you be discharged with an OTH characterization of service. The Board carefully reviewed your application, weighed all potentially mitigating factors, and considered your contentions regarding the convening and conduct of the BOI. Specifically, the Board considered your contention the Marine Corps failed to convene a BOI with at least one member in the same competitive category because none of the BOI members was a reservist or logistics Marine. The Board, relying upon the Headquarters Marine Corps AO, concurred there is insufficient evidence of an error or injustice warranting relief in your case. The Board concluded the BOI membership was not improper because one member was a reserve officer. Further, per the applicable SECNAVINST 1920.6C dated 15 December 2005, you are not entitled to a BOI member who shares the same competitive category. Even if competitive category were a criterion, in the Marine Corps, there are five competitive categories (unrestricted line, restricted line, warrant officer, active reserve, and specialist officers), so the inclusion of the reserve Marine officer ensured one BOI member was in the same competitive category. The Board also considered the case law submitted in your rebuttal and determined it was not on point. The Board also considered your contention the Marine Corps lacked jurisdiction to recall you to active duty to separate you for alleged misconduct that occurred during a prior period of service for which you had received an honorable discharge. Relying upon the AO, the Board concluded the Marine Corps retained jurisdiction because transferring between active duty and the IRR does not terminate jurisdiction over an offense under the Uniform Code of Military Justice. The Board further noted your contention the AO “provides no documentary evidence” that one of the BOI members was a reservist at the time of the BOI. Based on the presumption of regularity, the Board concluded there is no requirement for the Marine Corps to prove that it complied with its regulations nor has the evidence you submitted overcome the presumption. The Board concluded these factors and contentions were not sufficient to warrant relief in your case. It is regretted that the circumstances of your current reconsideration petition are such that favorable action cannot be taken. You are entitled to have the Board reconsider its decision upon the submission of new matters. New matters are those not previously considered by the Board. In the absence of new matters for reconsideration, the decision of the Board is final, and your only recourse would be to seek relief, at no cost to the Board, from a court of appropriate jurisdiction. 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, 1/5/2020