Docket No: 7567-19
Ref: Signature Date                             
 
 
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 26 October 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 and applicable statutes, regulations and policies. 
  
You enlisted in the Marine Corps and began a period of active duty on 28 June 1973.  On 10 January 1974, you received nonjudicial punishment (NJP) for 57 days of unauthorized absence (UA).  During the period from 7 March 1974 to 16 October 1974, you had five periods of UA totaling 94 days.  You were charged with the UAs and the charges were referred to trial by Special Court-Martial (SPCM).  However, the charges were dismissed due to lack of speedy trial.  On 8 June 1975, you received NJP for 14 days of UA.  On 18 August 1975, you were notified of administrative discharge action due to your frequent involvement with military authorities.  After being afforded your procedural rights, you elected to waive your right to have your case heard before an administrative discharge board.  On 19 August 1975, your case was forwarded to the separation authority with a recommendation that you receive an undesirable discharge (UD).  The recommendation noted that in 25 months of active duty time, you had 8 periods of UA totaling 192 days of lost time; and, in addition, you had 125 days either in the hands of military authorities while returning from UA or in the brig for pre-trial confinement; thereby totaling 317 days of which you were unavailable for duty in just over two years of active service.   
 
It was also noted that at the time of your administrative discharge processing, you were in pre-trial confinement pending trial by SPCM.  A physical examination discovered that there was a spot on your lung.  Medical staff felt you should be retained in the hospital for observation and further testing.  You were scheduled for surgery to conduct a biopsy so that a final determination of your physical condition could be made.  Hospital sources stated that you would have probably been recommend for a medical board, but no definite statement could be made pending the biopsy results.  Notwithstanding, your commanding officer stated that your physical condition was unfortunate, but in no way excused the contemptuous manner in which you had approached your responsibilities to the Marine Corps.  On 16 September 1975, the separation authority directed your separation from the Marine Corps.  On 2 October 1975, you began another period of UA, and on 4 December 1975, it was directed that you be discharged in absentia.  On 7 January 1976, you were, discharged from the Marine Corps with and other than honorable characterization (OTH) of service. 
  
The Board carefully weighed all potentially mitigating factors, such as your record of service, and desire to have your characterization of service upgraded.  The Board also considered your assertions that you feel that you received an OTH discharge because the Marine Corps did not want to give you a medical discharge, and you were not given due process when discharged.  The Board concluded these factors and assertions were not sufficient to warrant a change to your characterization of service given your misconduct which resulted in two NJPs, and the fact that you began another period of UA while pending administrative discharge.  With regard to your assertion of not receiving due process, the Board noted that you waived your right to request to have your case heard before an administrative discharge board, which would have been your best chance for retention and to earn a better characterization of service.  
 
The Board also 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).   However, even in light of the USD Memo, the Board still concluded 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 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,