Docket No: 3156-20
Ref: Signature Date


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.

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 19 February 2021. 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 originally enlisted in the Navy on 24 April 2006 and last reenlisted on 25 March 2011. From January 2013 through October 2015 you received no less than eleven (11) written adverse counseling sheets for discrepancies involving issues including your performance, responsibilities, and/or personal behavior. On 17 December 2015 your Navy Enlisted Classification (NEC) 8403 (Fleet Marine Force Reconnaissance Independent Duty Corpsman) was removed for cause by your Enlisted Community Manager due to your poor performance, lack of job proficiency, and professional incompetence.
 
In January 2016, your command completed an investigation into the theft of equipment issued and belonging to you that allegedly occurred in October 2015.  The Investigating Officer (IO) made the following findings of fact based on the evidence gathered: (a) you were negligent in leaving gear visible in your unlocked car (POV) in your driveway, (b) the amount of gear allegedly in your POV did not match and exceeded the required gear necessary for the training being conducted the following week, (c) you were untruthful about the amount of missing gear and increased the amount of gear reported as stolen four times, (d) you falsified the civilian police report by adding in an additional $11,000 to $12,000 worth of gear reported as stolen, and 
(e) you were negligent in the loss of government property in excess of $14,000.
 
On your periodic performance evaluation for the full twelve-month reporting period ending 15 March 2016 you were not recommended for either retention or promotion. The evaluation documented your NEC removal, and the evaluation showed that you received a 2.33 overall trait average (well below the summary group average of 3.38 on a 5.0 scale), and that you were ranked last out of ten total E-5 personnel in your summary group.
 
In April 2016, USMC Criminal Investigations Division (CID) completed an investigation into falsified/forged recruiting documents allegedly made by you involving your reenlistment paperwork. The CID investigation noted that your reenlistment contracts were flagged by Navy Personnel Command as altered.  The CID report noted that you admitted to altering your reenlistment documents multiple times before your command halted your reenlistment process. 
 
On 27 June 2016 you signed a “Notification for Disposition of Article 107 & 108 UCMJ Allegations,” (Disposition Notification), and on 28 June 2016 you signed a “Fast Track Agreement” (FTA). The Disposition Notification stated that if you were willing to plead guilty to the allegations at Battalion nonjudicial punishment (NJP) and waive your right to an administrative separation board (Adsep Board), your command would agree to dispose of your pending charges at Battalion NJP to avoid a Special Court-Martial (SPCM). The Disposition Notification expressly stated that the memorandum “reflects a final agreement regarding the disposition of the charges.” (emphasis added).  On page 2 of the Disposition Notification you elected in writing to be considered for a disposition that included pleading guilty at NJP and waiving your Adsep Board. You expressly did not demand a trial by SPCM.
 
The pre-trial FTA you signed reiterated the fact that “this memorandum reflects the following agreement between the Convening Authority (CA) and the accused…” The FTA stated that if you agreed to plead guilty to your pending charges at NJP and waived your right to an Adsep Board, the CA would adjudicate the charges at NJP and not refer your offenses to a SPCM.  The FTA made clear that if you did not agree to accept NJP, plead guilty, or waive your Adsep Board, the CA was free to refer the charges to a SPCM.  The FTA allowed you to change your mind to refuse NJP and demand your right to an Adsep Board at any time prior to the announcement of the NJP sentence (emphasis added). You were given the opportunity to consult with counsel prior to making any decisions.  However, you expressly agreed in writing to accept NJP, plead guilty to the charges, and waive your Adsep Board.  You noted right above your signature that the FTA contains the entire agreement between you and the CA. 

In accordance with the Disposition Notification and FTA, on 28 June 2016 you received NJP for false official statement and the loss of government property.  Consistent with the pre-trial FTA, you pleaded guilty and were found guilty of both charges.  You did not appeal your punishment. 

On the 29 June 2016 you were notified of your pending administrative separation by reason of misconduct due to a serious offense. However, on 1 July 2016 you were re-notified of your administrative separation using a Navy-specific form. Per the FTA you waived your Adsep Board. The “Navy” notification expressly noted that you waived your Adsep Board as part of a pretrial agreement.  However, you elected to present your case in clear violation of the FTA. 

On 1 July 2016 you filed a request for redress with your Commanding Officer (CO) to address all issues leading up to your NJP and NEC removal.  Before the 30-day response period ended, on 11 July 2016 you filed a formal Complaint of Wrongs (Art. 138) against your CO alleging, inter alia, certain errors with your Adsep Board processing and NEC removal.  On 13 July 2016 your CO denied your original request for redress.  On 14 July 2016 the Staff Judge Advocate (SJA ) for the General Court-Martial Convening Authority (GCMCA) recommended denial of your Art. 138 complaint across the board because it lacked merit, failed procedurally, and was untimely.  On 15 July 2016 the GCMCA denied any and all relief with regard to your Art. 138 complaint.  Ultimately, on 22 July 2016 you were discharged from the Navy with an other than honorable (OTH) characterization of service for misconduct and assigned an RE-4 reentry code. On 16 May 2017 this Board denied any and all relief on your initial petition.
  
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 contentions that: (a) the Disposition Notification and FTA were both based on erroneous authority, (b) when your command issued documents citing Navy authority you elected an Adsep Board and the Marine Corps disregarded your request, (c) the command’s errors were not harmless, (d) on your initial petition for relief the Board failed to adequately address all non-frivolous issues before the Board, (e) the legal basis for your Adsep Board waiver was erroneous thus your waiver was invalid, and (f) you had legally revoked your Adsep Board waiver and were improperly denied to opportunity to present your case to an Adsep Board.  Based upon this review, the Board still concluded that given the totality of the circumstances your request does not merit relief.
 
At the outset, the Board believed that your command was justified in removing your NEC for cause and the Board determined that such removal was in accordance with all Navy policy and directives and did not violate any due process concerns.  The Board noted that the record clearly reflected your below average performance as an independent duty corpsman assigned to a Marine Corps unit.  You received multiple counseling sheets over an extended period of time documenting substandard work.  It was readily apparent to the Board that your command clearly lost all trust and confidence in you to carry out your assigned responsibilities and rightfully took steps to remove your Fleet Marine Force Reconnaissance Independent Duty Corpsman NEC.  


Regarding your Adsep Board waiver and discharge, the Board determined your collective arguments surrounding your Adsep Board --that your Adsep Board documents were based on erroneous authority, your Adsep Board waiver was effectively revoked, and that you were denied due process for being separated without an Adsep Board --were all individually and collectively without merit and not persuasive. 

The Board determined that you were not denied due process with your administrative separation.  The Board noted that the overall letter and spirit of your pre-trial agreement with your command was: (a) plead guilty at NJP, (b) waive your Adsep Board, and (c) in exchange for the guilty plea and Adsep Board waiver the command won’t refer your charges to a SPCM. The Disposition Notification and FTA clearly documented such a pre-trial agreement in no uncertain terms.
  
The administrative separation manual references contained in the Disposition Notification, FTA, and initial notification are of absolutely no legal consequence in this case. Whether the pre-trial agreement paperwork referred to the MARCORSEPMAN or MILPERSMAN, had absolutely no bearing on the negotiation, what you were agreeing to waive, and the ultimate result.  As part of your pre-trial agreement you waived your Adsep Board. When the command subsequently tendered Navy-specific administrative separation paperwork to you, it did not in any way nullify the previous notification and subsequently allow you to elect an Adsep Board.  You had already unequivocally agreed to, and waived your right to, an Adsep Board. In fact, the Board observed that the Navy-specific notification form expressly stated, “HM2 waived his administrative separation board as part of a pretrialagreement.” 

The Board noted that the procedural and due process protections afforded service members are effectively the same in the MARCORSEPMAN and MILPERSMAN when processing for misconduct due to the commission of a serious offense.  Accordingly, the MARCORSEPMAN and MILPERSMAN references in the context of your pre-trial agreement negotiation would not have conferred any additional substantive legal rights to you not contained in the other respective service manual.
  
The Board determined that any purported errors referring to certain service-specific separation manuals during the pre-trial negotiation were harmless.  Moreover, the Board concluded that you failed to demonstrate that your discharge results would have been different had the paperwork errors had never occurred.  You pleaded guilty at NJP for falsifying enlistment documents and the negligent loss of government property.  The CID investigation noted you admitted you altered certain enlistment documents. 
 
Even assuming arguendo that after expressly agreeing in writing per the FTA to accept NJP, plead guilty to the charges, and waive your Adsep Board, that you should have been afforded to right to elect an Adsep Board on the Navy notification form, the Board determined the end discharge result would have been the same.  More specifically, the Board determined that based on the previously adjudicated offenses for which you pleaded guilty at NJP, your OTH characterization of service was still warranted and all but a foregone conclusion.

Thus, the Board concluded that given your NJP guilty plea and findings of guilt, that any request by you to remove all NJP records and to grant additional remedial relief related to such NJP removal was baseless and entirely without merit. Furthermore, the Board unequivocally did not believe that your record was otherwise so meritorious to deserve an upgrade. The Board determined that your record clearly reflected a below average performance, and concurred with the removal of your NEC. The Board concluded that significant negative aspects of your conduct and/or performance greatly outweighed any positive aspects of your military record. 

The Board also determined that your misconduct constituted a significant departure from the conduct expected of a Sailor. The Board noted that the evidence of record did not demonstrate that you were not mentally responsible for your conduct or that you should not be held accountable for your actions. The Board carefully considered any matters submitted regarding your post-service conduct and accomplishments, however, even in light of the Wilkie Memo and reviewing the record holistically, the Board still concluded that given the totality of the circumstances, your request does not merit relief. Accordingly, the Board determined that there was no impropriety or inequity in your discharge and concluded that your misconduct clear merited your OTH.

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,