Docket No: 1969-20            
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 relevant portions of your naval record and your application, 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 23 November 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). 
 
The Board determined that your personal appearance, with or without counsel, would 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 and began a period of active duty on 13 June 1980.  Your Medical Record indicates that on 9-12 August 1980, you were admitted to the hospital with a diagnosis of a brain concussion.  On 3 September 1980, you were convicted at Special Court-Martial proceedings for stealing personal property (coin, currency and a Timex watch).  Medical Record entries dated 19 October 1981, reflect that you suffered left ear trauma due to multiple blows to the face.  On 26 January 1982, you were found guilty at Summary Court-martial (SCM) for wrongfully communicating a threat to a lance corporal.  On 4 June 1982, you received nonjudicial punishment (NJP) for assaulting a private first class and drunk and disorderly conduct.  Your record of service reflects average marks in service of 1.9/4.3.   
 
Your service record did not contain all of the information related to your administrative separation from the Marine Corps.  Absent of such evidence, the Board relies upon the presumption of regularity and presumes that the officials acted in accordance with governing law/policy and in good faith.  Based on you Certificate of Discharge or Release from Active Duty (DD Form 214), on 16 November 1982, you were discharged from the Marine Corps on the basis of misconduct due to frequent involvement in discreditable incidents, received an other than honorable (OTH) characterization of service, and a reentry (RE) code of RE-4. 
 
In your application to the Board, you request an upgrade from an OTH to a general characterization of service, or a Medical discharge.  You provide medical records in support of your request and note that you enlisted 2 days after your 17th birthday day.  You contend that you were very immature at the time of your military service and that you were introduced to illegal drugs by other Marines.  Being so young, you believed it was alright since your peers were doing it.  You assert that you were threatened by another Marine to steal money from your roommate’s locker; you did so and were convicted at special court martial proceedings.  You further assert that the same Marine who threatened you, slammed you on the head and you received a concussion; and you were so scared that you said you fell on a chair.  You cite another incident where a Lance Corporal hit you on the bead with a cast and knocked you out.  You contend that you would have had a better military career if you had received better guidance.  You state that the seriousness of your separation did not really matter until you matured and realized what happened. 
 
The Board, in its review of your entire record and application, carefully weighed all potentially mitigating factors, including your age at the time of your enlistment, your statements regarding the peer pressure you faced, and the threats you assert occurred while you were in the Marine Corps.  The Board found that you did not provide sufficient evidence or information in your application to support your statements regarding the peer pressure and threats you faced.  The Board also considered that you seek a medical discharge.  The Board reviewed the available medical records and found that you suffered several traumas while you were in the Marine Corps, but determined that you did not provide enough information to establish that you suffered from a condition or disability that impacted your fitness for duty.  Furthermore, the Board noted that SECNAVINST 1850.4 series states processing for administrative discharge for misconduct take precedence over processing for disability.  Even in consideration of your assertion of entitlement to a medical discharge, the Board found that the misconduct reflected in your record, specifically the SPCM conviction, the SCM conviction, and the NJP, were the appropriate basis for your administrative discharge.  With regard to your request for an upgrade, the Board found that your OTH discharge appears to have been supported by the evidence of misconduct in your record and is not overcome by the assertions in your application.  The Board concluded that you did not provide sufficient evidence to merit corrective action.   
 
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.  Based upon this review, the Board concluded these potentially mitigating factors were insufficient to warrant relief.  Specifically, the Board determined that your repeated misconduct, as evidenced by your NJP and courts-martial, 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,