Docket No. 5064-19 Dear : 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 10 July 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 9 May 1994. Following your completion of initial recruit training, in late October 1994, you were transferred to Marine Corps Base . On 9 December 1994, you received a “Page 11” counseling warning (Page 11) for unauthorized absence (UA) and for disobeying a lawful order. In the Page 11 you were expressly warned that a failure to take corrective action may result in disciplinary action and/or processing for administrative separation. On 24 January 1995, you went to non-judicial punishment (NJP) for disobeying a lawful order for failing to report to your appointed place of duty. On 7 February 1995, you received a Page 11 counseling warning for disobeying a lawful order to stand Battalion Duty Clerk. On 17 February 1995, you went to NJP for breaking restriction and insubordinate conduct toward a non-commissioned officer when you pushed him during a counseling session. On 27 February 1995, you received a Page 11 counseling warning for drinking alcohol while on restriction. You were again warned that a failure to take corrective action may result in disciplinary action and/or processing for administrative separation. On 2 June 1995, pursuant to your guilty pleas, you were convicted at a Special Court-Martial (SPCM) of UA lasting ten days, two specifications of a failure to obey a lawful order, and breaking restriction. You received as punishment 59 days of confinement, forfeitures of pay for two months, and a discharge from the Marine Corps with a Bad Conduct Discharge (BCD). Following completion of the post-trial appellate review process in your case on 21 May 1996, your punitive discharge was ordered executed and you were ultimately discharged from the Marine Corps with a BCD on 23 May 1996. The Board carefully weighed all potentially mitigating factors, including your contentions that included, but were not limited to: (a) that you were going through some marital issues at the time of your SPCM, (b) that your wife had come to live with you and that is when your problems started, but she refused to attend counseling, (c) that things with your marriage spiraled out of control and you were discharged with a BCD due to it, and (d) if the Board were to go back before your spouse moved out to you did not have any previous problems. The Board gave liberal and special consideration to your record of service, and your contentions about any traumatic or stressful events you may have experienced and their possible adverse impact on your service. However, the Board found that your contentions and mitigating factors were not sufficient to upgrade your discharge or grant any other relief in your case given the overall seriousness of your pattern of misconduct and your disregard for good order and discipline on active duty. The Board initially noted that your discreditable involvement with military authorities spanned your entire tenure at . Additionally, absent a material error or injustice, the Board generally will not summarily upgrade a discharge solely for the purpose of facilitating VA benefits, or enhancing educational or employment opportunities. The Board also observed that character of military service is based, in part, on conduct and overall trait averages which are computed from marks assigned during periodic evaluations. Your overall active duty trait average during your enlistment was 3.2 in conduct. Marine Corps regulations in place at the time of your discharge required a minimum trait average of 4.0 in conduct (proper military behavior), for a fully honorable characterization of service. The Board concluded that your conduct marks during your active duty career were a direct result of your pattern of misconduct. Accordingly, the Board determined that there was no error or injustice in your discharge, and even under the liberal consideration standard, the Board found that your serious misconduct and your disregard for good order and discipline merited your receipt of a BCD. The Board also noted that, although it cannot set aside a conviction, it might grant clemency in the form of changing a characterization of discharge, even one awarded by a court-martial. However, the Board unanimously concluded that, despite your contentions, this is not a case warranting clemency. You were properly convicted at a SPCM of serious misconduct, and the Board did not find any evidence of an error or injustice in this application that warrants upgrading your BCD. 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,” 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, 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.