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

Docket No:  1757-19             
Ref: Signature date 

This is in reference to your application of 24 January 2019 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 21 October 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, and applicable statutes, regulations, and policies.

You enlisted in the Marine Corps and began a period of active duty on 19 March 2002.  On 3 October 2002, you received non-judicial punishment (NJP) for larceny and wrongful appropriation.  On 28 February 2003, you were counseled for assault.  On 10 June 2003, you recieved NJP for wrongful use of drugs.  Subsequently, administrative action was initiated to separate you from the naval service by reason of misconduct.  On 1 July 2003, your Commanding Officer (CO) notified you of administrative separation proceedings.  That same day, you consulted counsel and requested an administrative discharge board (ADB).  On 2 July 2003, your CO recommended to the separation authority that you receive an other than honorable conditions (OTH) characterization of service noting that your “self-admitted use of drugs combined with [your] continued poor performance and unsatisfactory attitude make [you] unfit for further service.”  On 7 August 2003, you again received NJP for impersonating a noncommissioned officer.  On 3 September 2003, you changed your request for an ADB and waived your ADB.  On 10 September 2003 the separation authority approved your discharge and directed that you receive an OTH characterization of service. On 24 September 2003, you were so discharged. 

The Board carefully weighed all potentially mitigating factors in your case, including your desire to upgrade your discharge, and your contention that you requested a hearing for NJP and did not receive it.  The Board also considered your contention that you were “misguided into signing a waiver” after your initial request for a board and were told it would not matter.  The Board concluded these factors and assertions were not sufficient to warrant a change to your discharge given your misconduct, which resulted in an NJP for use of drugs.  The Board noted you were represented by counsel throughout the adminstrative separation process and waived your right to an ADB in writing, specifically aknowledging that you would most likely receive a OTH characterization of service. By doing so, you gave up your first, and best, opportunity to advocate for retention or a more favorable characterization of service. 

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, 

11/27/2019