DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 1392-20 Ref: Signature Date 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. 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 18 December 2020. The names and votes of the panel members 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 the 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, to include the 25 July 2018 guidance from the Under Secretary of Defense for Personnel and Readiness regarding equity, injustice or clemency determinations (Wilkie Memo). You enlisted in the Marine Corps on 28 January 1977. On 16 December 1977 pursuant to your guilty plea, you were convicted at a Special Court-Martial (SPCM) for a failure to obey a lawful general regulation by wrongfully possessing Phencyclidine (aka PCP or “Angel Dust”). Your offense occurred on a military installation. You received as punishment, forfeitures of pay, confinement, a reduction in rank to the lowest enlisted paygrade (E-1), and a discharge from the Marine Corps with a Bad Conduct Discharge (BCD). On 13 January 1978 you waived your right to request restoration and instead requested execution of your BCD. In the interim you received non-judicial punishment for unauthorized absence lasting fourteen days. On 20 April 1978 the U.S. Navy Court of Military Review (CMR) affirmed the SPCM findings and sentence. Following the completion of appellate review in your case, your BCD was ordered executed and on 29 November 1978 you were discharged from the Marine Corps with a BCD. The Board carefully weighed all potentially mitigating factors, including your contentions that included, but were not limited to your assertions that: (a) the Marine Corps made an error in procedure in its unconstitutional search and seizure of your person and effects, (b) the Marine Corps made an error in procedure in failing to notifying you of your appeal rights, and (c) you have demonstrated you are worthy of being considered for clemency due to your contributions toward your family and community. 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 misconduct and your total disregard for good order and discipline on active duty. The Board determined that your unlawful search and seizure argument was entirely without merit and concluded that the PCP seized from your person was a lawful search incident to your arrest. The Board also determined that there were no post-trial procedural or due process errors that prejudiced you and any argument to the contrary is based on a fundamental misunderstanding of the post-trial court-martial process. You were represented by appellate defense counsel in front of the CMR which ultimately affirmed your conviction and sentence. The fact that the U.S. Court of Military Appeals did not receive a timely petition for review from your appellate counsel to appeal your conviction further is in no way an indication you were not notified of your appeal rights. Moreover, the Board concluded that your contention alone without evidence to corroborate or substantiate your due process argument is not enough to rebut the presumption of regularity in governmental affairs. The Board also did not believe that your record was otherwise so meritorious as to set aside your discharge and determined that sailors should receive no higher discharge characterization than is due. The Board considered your post-service accomplishments, but ultimately concluded your serious misconduct still warranted a BCD. 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 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 concluded that despite your contentions this is not a case warranting clemency, and the Board did not find any evidence of an error or injustice in this application that warrants upgrading your BCD. The Board carefully considered all potentially mitigating factors to determine whether the interests of justice warrant relief in your case in accordance with the Wilkie Memo. These included, but were not limited to, your desire to upgrade your discharge and your contentions discussed above. Based upon this review, the Board concluded these potentially mitigating factors were insufficient to warrant relief. Specifically, the Board determined that your misconduct outweighed these mitigating factors. Accordingly, given the totality of the circumstances, the Board determined that your request does not merit relief. 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, 1/28/2021 Executive Director