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

Docket No: 0237-19
Ref: Signature Date 

This is in reference to your application of 4 November 2020 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 29 January 2020.  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, relevant portions of your naval record, and applicable statutes, regulations, and policies. 

Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to their understanding of the issues involved.  Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record. 

You enlisted in the Marine Corps and began a period of active duty on 5 June 1991.  On 27 January 1993, you received non-judicial punishment (NJP) for wrongfully wearing an earring. On 11 May 1993, you were arrested by civilian authorities and charged with committing felonious larceny, felonious possession of stolen goods and possession of burglary tools.  After being advised of your rights, you made an oral statement that you and another individual broke into the Yamaha storage area and stole three motorcycles.  On 9 July 1993, you received your second NJP for failure to go at the time prescribed to your appointed place of duty. Subsequently, you were notified of an administrative action to separate you from the naval service because of misconduct due to commission of a serious offense. You were advised of, and waived, your procedural rights, including your right to consult with and be represented by military counsel, and your right to present your case to an administrative discharge board (ADB).  Your commanding officer (CO) recommended that you be administratively discharged from the naval service with an other than honorable (OTH) characterization of service. On 4 October 1993, a staff judge advocate determined that you were accorded all the rights to which you were entitled and the proceedings were sufficient in law and fact.  The discharge authority directed that you be separated from the naval service with an OTH characterization of service for misconduct due to the commission of a serious offense. On 7 October 1993, you were so discharged. 

The Board carefully weighed all potentially mitigating factors in your case, including your desire to upgrade your discharge.  The Board considered your contention that your case was prematurely adjudicated by the military before your case was adjudicated in civilian court.  The findings show that you were not guilty of the charges that you were charged with.  The Board concluded these factors were not sufficient to warrant relief in your case because of the seriousness of your misconduct which resulted in two NJPs, and your civilian arrest.  The Board noted that you waived your right to an ADB, and thereby forfeited your best opportunity to receive a better characterization of service.  Regarding your contention, pursuant to naval regulation a Marine may be processed for separation if the military or civilian offense warrants separation and a punitive discharge would be authorized for the same or a closely related offense under the Uniform Code of Military Justice, military or civil conviction is not required.  Under the totality of the circumstances, the Board 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, 


2/11/2020