DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 

Docket No: 1210-20   
Date: Ref Signature 

Dear 

This letter is in reference to your application for correction of your husband’s 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 that 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 11 March 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 husband’s naval record, as well as applicable statutes, regulations, and policies. 

Your husband enlisted in the Marine Corps and began a period of active duty on 30 March 1976.  On 29 January 1977, your husband received non-judicial punishment (NJP) for unauthorized absence (UA).  He went UA again for the period 15 October 1977 to 28 October 1977.  Your husband was charged with striking a Marine officer, which occurred on 7 May 1978.  Your husband went on a third period of UA from 2 June 1978, until his apprehension by civil authorities on 25 September 1978.  On 5 October 1978, your husband was charged with the aforementioned offense, which were referred to a special court-martial (SPCM).  Your husband went on UA from 16 October 1978 until his surrender on 17 October 1978.  Your husband was charged with UA and failure to be at his appointed place of duty, and the charges were referred to SPCM as additional charges.  Your husband went on a period of UA from 15 November 1978 until his apprehension by civil authorities on 5 February 1979 (83 days).  On or about 8 January 1979, additional charges were preferred against your husband for the foregoing additional misconduct.  On 16 March 1979, your husband was discharged with an other than honorable (OTH) characterization of service by reason of good of the service. 

The Board carefully weighed all potentially mitigating factors, such as your desire to upgrade your husband’s discharge, and contentions of his youth, abusive childhood, and hearing loss.  You contend his exposure to radiation incurred during his active service contributed to his stage IV brain cancer.  The Board noted you provided no evidence, and your husband’s naval record did not contain evidence, to support your contention that your husband was exposed to radiation which resulted in his diagnosis of Glioblastoma.  Further the Board did not find a clear nexus between your husband’s diagnosis and the misconduct he committed while on active duty.  The Board reviewed all evidence submitted with your application, and considered your contentions as a factor in your husband’s separation, but concluded that the severity of your husband’s repeated misconduct outweighed your current desire to upgrade his discharge.  Although the complete discharge documentation is not in your husband’s record, it appears that your husband requested discharge for the good of the service to avoid trial by court-martial.  The Board noted that, in requesting a discharge for the good of the service in lieu of trial by court-martial, your husband would have been required to meet with a military defense counsel and to admit that he was guilty of the misconduct alleged.  Finally, the Board noted that your husband received a benefit from being allowed to separate with an OTH characterization of service instead of risking greater punishment at a court-martial.  Accordingly, under the totality of the circumstances, the Board, in its review, discerned no probable material error or injustice in the discharge.
 
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. 

Sincerely, 

4/12/2020