Dear ,  
 
This is in reference to your application for correction of your naval record pursuant to Section 1552 of Title 10, United States Code.  After careful and conscientious consideration of relevant portions of your naval record and your application, the Board for Correction of Naval Records (Board) found the evidence submitted insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied.     
 
A three-member panel of the Board, sitting in executive session, considered your application on  4 March 2021.  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. 
 
A review of your record shows that you entered service with the Marine Corps in 2013.  On 21 July 2017, you were arrested by civilian authorities after allegedly assaulting your spouse while intoxicated.  The local district attorney informed you that no charges were pending against you resulting in your command imposing non-judicial punishment on 2 November 2017 for your 21 July 2017 misconduct.  A counseling statement documenting the misconduct was issued the same day.  On 14 August 2020, non-judicial punishment was again imposed on you for two specifications of an orders violation.  You were eventually discharged by the Marine Corps on 12 October 2020 for non-retention.   
 
The Board carefully considered your arguments that the 2 November 2017 non-judicial punishment and associated counseling statement should be removed from your record.  You rely on the fact the local district attorney chose not to charge you with misconduct as the basis for your argument of error or injustice.  Unfortunately, the Board disagreed with your rationale for relief.   
 
The Board concluded that the preponderance of the evidence supports leaving your record unchanged.  Despite your argument that a prosecutorial decision by the local district attorney not to charge you makes the Marine Corps’ decision to impose non-judicial punishment erroneous or unjust, the Board determined your requested change to your record is not merited.  Civilian criminal and non-judicial punishment proceedings operated under vastly different rules including burdens of proof for a finding of guilt.  Criminal proceedings require the government to prove guilt beyond a reasonable doubt while non-judicial punishment proceedings only require a preponderance of evidence to establish guilt.  The beyond of reasonable doubt standard of proof is a much more difficult standard to meet than the preponderance standard.  Consequently, since the Marine Corps is reviewing the facts of your case under an easier standard of proof, the Board concluded that the local district attorney’s decision not to proceed with criminal proceedings against you for your alleged assault against your wife does not mean the Marine Corps should necessarily reach the same conclusion.  Therefore, the Board found no error with the Marine Corps’ decision to impose non-judicial punishment on 2 November 2017 or to document your misconduct via a counselling statement.  The Board also took into consideration that you had the right to request trial by court-martial where the standard of proof would have been the same standard imposed on the local district attorney.  Since you voluntarily accepted a non-judicial punishment hearing to determine whether you committed misconduct, the Board determined no injustice exists with the imposition of non-judicial punishment or the associated counseling.  Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to your record.   
 
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,    
                                                      
3/7/2021