Docket No: 1909-20
Ref: Signature DateDocket No: 1909-20
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 18 November 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, as well as 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 issue(s) 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 and began a period of active service on 21 July 1987.  On 17 January 1990, you were convicted at a special court-martial (SPCM) for carnal knowledge with a child under the age of 16 years, and committing sodomy.  You were sentenced to a bad conduct discharge (BCD), confinement, forfeiture of pay, and reduction in rank.  On 17 March 1990, you began a period of unauthorized absence (UA).  While in a UA status, on 15 June 1993, you were convicted by civil authorities for possession of a controlled substance with intent to distribute.   
 
On 26 August 1993, you acknowledged receipt of notification of the initiation of administrative separation proceedings by reason of misconduct due to commission of a serious offense, at which point, you elected to waive your right to counsel and your right to a hearing before an administrative discharge board (ADB).  On 9 September 1993, your commanding officer (CO) forwarded your case to the separation authority (SA) recommending your discharge with an other than honorable (OTH)Characterization   of service by reason of misconduct due to commission of a serious offense.  On 26 September 1983, your administrative separation proceedings were determined to be sufficient in law and fact by the staff judge advocate to the SA.  On 22 September 1993, the SA concurred with your CO’s recommendation and directed your discharge.  On 24 September 1993, you were discharged in absentia. 
 
The Board carefully weighed all potentially mitigating factors, such as your desire to upgrade your discharge.  You also request adjustment to your rank and dates of service.  You contend your discharge documents do not reflect the same information in your Certification of Military Service (NA Form 1308).  The Board reviewed the NA Form 13038 submitted with your application.  However, the Board recommends that you reconfirm the information provided by the National Archives and Records Administration (NARA), as your official Certificate of Release or Discharge from Active Duty (DD Form 214) accurately reflects your characterization of service, as “other than honorable,” which is consistent with the above described chain of events that led to your discharge.  Please also note that documents provided by agencies such as the NARA do not affect decisions made by the Marine Corps.  After careful consideration of your contentions, the Board did not find evidence of an error or injustice that warrants adjustment to your naval record.   
 
In reviewing your separation and characterization of service, the Board considered the totality of the circumstances to determine whether relief is appropriate today in the interests of justice in accordance with guidance provided by the Under Secretary of Defense for Personnel and Readiness (Wilkie Memo of 25 July 2018).    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 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,