Docket No: 2440-19
Ref: Signature Date    



This 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 2 April 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, 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 on 5 March 1974. During the period from 8 January 1975 to 9 July 1975, you received three non-judicial punishments (NJP) for unauthorized absence (UA) totaling five days, failure to obey a lawful order on two occasions, sleeping on post, dereliction in the performance of duty, and absence from your appointed place of duty. On 14 July 1975, you were convicted by summary court-martial (SCM) of two specifications of UA totaling five days, three hours, and 30 minutes.  On 4 August 1975, you received NJP for two specifications of UA totaling two days.  On 30 March 1976, you were convicted by special court-martial (SPCM) of three specifications of UA totaling 37 days, 11 hours, and 30 minutes and disobeying a lawful order.  You were sentenced to confinement for three months, forfeiture of pay, and a bad conduct discharge (BCD).  After the BCD was approved at all levels of review, on 26 May 1977, you were discharged. 


The Board carefully weighed all potentially mitigating factors, such as your desire to upgrade your discharge and your contentions that you need your Department of Veterans Affairs (VA) benefits reinstated and that your misconduct did not warrant a BCD.  In regard to your contention that you need your VA benefits reinstated, whether or not you are eligible for benefits is a matter under the cognizance of the VA, and you should contact the nearest office of the VA concerning your right to apply for benefits.  If you have been denied benefits, you should appeal that denial under procedures established by the VA. Regarding your contention that your misconduct did not warrant a BCD, the Board noted that the record contains documented evidence, which is contrary to your contention.  The record shows that you received four NJPs, a SCM, and a SPCM prior to being discharged with a BCD. The Board concluded that your misconduct outweighed your desire to upgrade your discharge. Finally, the Board discerned no probable material error or injustice in your record warranting an upgrade in the characterization of your 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.