Docket No. 3387-20 
Ref: Signature Date 


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 case on its merits.  A three-member panel of the Board, sitting in executive session, considered your application on 11 June 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 and applicable statutes, regulations and policies.  

A review of your record shows that you entered active duty with the Marine Corps in March 2007.  Your record contains a number of counsellings throughout your career related to misconduct, poor judgement, and notifications regarding non-recommendations for promotion.  In June 2009, you were involved in a motorcycle accident during which you suffered extensive fractures resulting in your placement on limited duty until March 2010.  In the meantime, non­judicial punishment was imposed on you for insubordination in January 2010.  Another non­judicial punishment was imposed on you for insubordination and wrongful use of marijuana in February 2011 before you were discharged for misconduct on 12 April 2011.  You were assigned an Other than Honorable characterization of service and a RE-4B reentry code based on your involvement with a controlled substance.  The Naval Discharge Review Board denied your request for an upgrade to your characterization of service on 7 October 2015.  On 6 March 2020, you current medical provider provided a statement that you were being treated for Traumatic Brain Injury (TBI) and that your pattern of misconduct was likely attributable to your behavioral changes due to your 2009 accident. 

The Board carefully considered your arguments that you deserve to have your misconduct removed from your record.  You assert that your 2009 accident resulted in TBI that contributed to your misconduct and administrative separation from the Marine Corps.  Unfortunately, the Board disagreed with your rationale for relief.  Despite the opinion provided in the 6 March 2020 letter from your medical provider that your misconduct was caused by TBI incurred during your 2009 accident, the Board concluded the preponderance of the evidence does not support removing your documented misconduct from your record.  First, the Board found no evidence that you did not commit the offenses documented in your record.  Second, the Board relied on the 30 June 2010 medical report that determined that you did not meet the standard for a TBI diagnosis at that time and that you had a history of impulse and anger management issues prior to your 2009 accident.  The Board also noted that, contrary to your assertion that you did not have misconduct issues prior to your 2009 accident, you were counselled for unauthorized absence, speeding in a motor vehicle, and failing to stop along in a motor vehicle with playing excessively loud music.  In the Board’s opinion, this documents a history of conduct issues prior to your 2009 accident that continued into 2010 and 2011.  Based on these findings, the Board concluded that your misconduct is properly documented in your record and there is insufficient evidence of injustice to remove the documentation.  

Regarding your request for an upgrade to your characterization of service, the Board also concluded the evidence does not support relief.  Despite applying liberal consideration to the facts of your case based on your 2020 TBI diagnosis, the Board concluded there was insufficient evidence to form a nexus between your misconduct and current TBI condition.  Utilizing the same analysis as above, the Board concluded the medical evidence at the time of your discharge did not support a TBI diagnosis and there was sufficient evidence of a history of pre-accident misconduct to discount that your post-accident misconduct was due to your 2009 injuries.  Therefore, the Board concluded you were properly assigned an Other than Honorable characterization of service based on the documented incidents of misconduct and seriousness of the offenses.  In particular, the Board felt your continued insubordination toward senior non­commissioned officer, more likely than not, significantly impacted good order and discipline within your command.  When combined with your wrongful use of marijuana, the Board felt your actions amounted to a significant departure of conduct expected from a Marine.  Based on these findings, the Board concluded an Other than Honorable characterization of service remains appropriate in your case. 

Finally, based on its earlier findings, the Board determined you are not eligible for military disability benefits.  Disability regulations direct misconduct related administrative separation processing to supersede disability processing.  So even if there was some evidence you were unfit for continued naval service due to a disability condition, you were properly discharged for your misconduct in accordance with the disability regulation.  Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to your record.  

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. 

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 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.  

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