Docket No. 8433-19 Ref: Signature Date MR Dear Mr. : 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 for Correction of Naval Records, sitting in executive session, considered your application on 11 September 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. 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 on 19 September 1984. On 14 March 1985 you received non-judicial punishment (NJP) for insubordinate conduct toward a non-commissioned officer and unauthorized absence (UA). You did not appeal your punishment. On 16 May 1985 you received NJP for failing to obey a lawful order and UA. You did not appeal your punishment. Following your second NJP, you received a “Page 11” counseling warning (Page 11) for UA and disobeying a lawful order. In the Page 11 you were expressly warned that failing to take corrective action may result in disciplinary action and/or processing for administrative separation. On 29 May 1985 you were convicted at a Summary Court-Martial (SCM) for two specifications of insubordinate conduct toward a non-commissioned officer, UA, and false official statement. On 8 January 1986, you received a Page 11 warning for disobeying lawful orders given by non-commissioned officers, dereliction of duty, and disrespect towards senior Marines. You were warned that any further deficiencies in your performance and/or conduct may result in disciplinary action and/or processing for administrative separation. On 25 January 1986, you received NJP for insubordinate conduct towards a non-commissioned officer. You did not appeal your punishment. On 8 April 1986, you received NJP for failing to obey a lawful order. You did not appeal your punishment. On 28 May 1986 you were convicted at a SCM for insubordinate conduct toward a non-commissioned officer. Your command notified you that you were being processed for an administrative discharge by reason of misconduct. Unfortunately, not all of the administrative separation documentation is in your service record. However, the Board relied on a presumption of regularity to support the official actions of public officers. In the absence of substantial evidence to rebut the presumption, to include evidence submitted by you, and given the narrative reason for separation and corresponding separation code as stated on your DD Form 214, the Board presumed that you were properly processed for separation for misconduct due to a pattern of misconduct and discharged from the Marine Corps after waiving your right to an administrative separation board. On 11 August 1986, the 2d Marine Division Staff Judge Advocate (SJA) reviewed your administrative discharge and determined that your separation was legally and factually sufficient. Ultimately, on 28 August 1986, you were discharged from the Marine Corps with an Other Than Honorable (OTH) characterization of service. Your overall active duty trait average was 3.7 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 carefully weighed all potentially mitigating factors, including your contentions that included, but were not limited to: (a) you assert legal error that your substantive and procedural due process rights were violated; (b) you believed that you were being separated with a general (under honorable conditions) (GEN) discharge; (c) the presumption of regularity should not be applied because the record contains no evidence that you unconditionally waived your administrative separation board; (d) your OTH has served as a barrier to you and your family securing VA benefits necessary as a result of medical issues arising from being exposed to tainted water at Camp Lejeune; (e) the nature of your misconduct falls only slightly below the average code of conduct expected of a Marine; and (f) the object of your discharge has long since been served in the years since your discharge. However, the Board found that your contentions and mitigating factors were not sufficient to upgrade your discharge or grant any other relief, given the misconduct reflected in your service record. The Board disagreed with your contention that the presumption of regularity should not be afforded because certain administrative separation documentation is missing from your record. While the record is incomplete, there is an indication on a recommendation form dated 12 August 1986 for the separation authority’s signature that you waived your board. Additionally, the separation authority directed your commanding officer to separate you for misconduct due to a pattern of misconduct with an OTH characterization and a separation code of “HKA1.” The separation code on your DD Form 214, “HKA1,” corresponds to a separation for misconduct due to a pattern of misconduct with an administrative board waiver. The Board also noted that the SJA for the separation authority determined that your administrative separation was legally and factually sufficient. The SJA remarked in his memorandum of review, “The respondent was accorded all rights to which entitled, and the proceedings are sufficient in law and fact.” (emphasis added). The SJA also noted that you were afforded all of your due process rights. Thus, the Board determined that the lack of some administrative separation documents in your record does not summarily invalidate your discharge and characterization. The Board noted that there is no evidence in the record to substantiate your contention that you thought you were going to receive a GEN characterization. Moreover, the Board concluded that receipt of a GEN discharge was not supported by the facts illustrated in the record. The Board 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 in conduct during your active duty career was a direct result of your serious misconduct, which ultimately supported the separation authority’s decision to issue you an OTH characterization of discharge. The Board also noted, contrary to your contention, that neither you nor your eligible dependents are prohibited from receiving VA benefits due to your OTH discharge. 1 However, decisions regarding eligibility for VA benefits are entirely within the discretion of the Department of Veterans Affairs. 1 https://www.va.gov/disability/eligibility/hazardous-materials-exposure/camp-lejeune-water-contamination/ The Board believed that, even though flawless service is not required for an honorable discharge, in this case only an OTH discharge was warranted. Additionally, there is no provision of federal law or in Navy/Marine Corps regulations that allows for a discharge to be automatically upgraded after a specified period of time. Lastly, 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. Accordingly, the Board determined that there was no impropriety or inequity in your discharge, and the Board found that your serious misconduct clearly merited your receipt of an OTH. 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 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,