Docket No. 3295-20
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.     
 
A three-member panel of the Board, sitting in executive session, considered your application on  22 April 2021.  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 and applicable statutes, regulations and policies.  In addition, the Board considered the advisory opinion contained in HQMC letter 1070 JPL of 29 Apr 2020; a copy of which was previously provided to you for comment. 
 
A review of your record shows that you entered active duty with the Marine Corps in March 2012.  You assert that you were the target of a sexual assault investigation that commenced in May 2017.  While being investigated, you earned a Navy-Marine Corps Achievement Medal in February 2018.  However, non-judicial punishment was imposed on you for two specifications of an orders violation on 14 June 2018 after you waived your right to demand trial by court-martial.  Based on your misconduct, you were notified of administrative separation processing for commission of a serious offense on 19 September 2018.  After consulting with legal counsel, you waived your due process rights to an administrative separation board resulting in your discharge from the Marine Corps on 25 October 2018 with an Other than Honorable characterization of service. 
 
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.
 
The Board carefully considered your arguments that your 14 June 2018 non-judicial punishment should be removed from your record as a matter of injustice.  You raised a number of issues including lack of due process, a finding that no sexual assault occurred, and superior performance while awaiting completion of the investigation.  You also assert that you only waived your administrative separation board right since you had post-discharge employment lined up.  Unfortunately, the Board found insufficient evidence to grant relief in your case.  In making their findings, the Board substantially concurred with the advisory opinion in your case.  Specifically, the Board found no evidence of error in the imposition of non-judicial punishment on 14 June 2018.  Despite your assertion that you were somehow denied due process, the Board found no evidence to support such a finding.  Records show you elected to accept non-judicial punishment on 13 June 2018 despite being afforded an opportunity to demand a trial by court-martial.  Additionally, you elected to waive your administrative separation board after consulting with legal counsel for personal reasons associated with securing post-discharge employment.  As a result, the Board found no error or injustice in your non-judicial punishment or your administrative separation from the Marine Corps based on the misconduct that resulted in the non-judicial punishment.  Additionally, despite evidence that you possessed good military character during your period of active duty, the Board determined the preponderance of the evidence supports the non-judicial punishment imposed on you since you provided no direct evidence to contradict the finding that you committed the underlying misconduct.  Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to your record.   
 
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,