DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 

Docket No: 4242-20 
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 11 May 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, as well as the 24 July 2020 advisory opinion (AO) furnished by the Marine Corps Office of Legal Counsel (JPL). The AO was provided to you on 30 July 2020, and you were given 30 days in which to submit a response. When you did not provide a response, your case was submitted to the Board for consideration. 

The Board carefully considered your request to remove your 26 November 2018 unit punishment book (UPB)/non-judicial punishment (NJP), 26 November 2018 Administrative Remark (page 11) entry and retirement under the Temporary Retirement Authority (TERA). 

The Board considered your contentions that: 1) your commanding officer (CO) lacked sufficient evidence to conclude that you committed the alleged offenses by a preponderance of the evidence; 2) there was no direct evidence that you wrongfully took any money that you were not entitled to; 3) the NCIS investigation relied upon your wife’s statement that she did not live in , which was a misunderstanding because she knew the city as ; 4) your wife did move, but you were not aware of her location because of your strained relationship and infrequent communication; 5) the command did not specifically allege that you failed to update your information and did not provide any evidence that you had a duty to do so; 6) the allegation required that the government prove that the information was false when you provided it. You claim that your NJP led to the denial of your reenlistment and if not for your NJP, you would have been eligible for TERA according to MARADMIN 135/19. 

The Board, however, substantially concurred with the AO that your NJP is valid. The Board noted that you received NJP for violating Article 107 (false official statement) and Article 121 (stealing more than $500 in Basic Allowance for Housing (BAH)), Uniform Code of Military Justice (UCMJ) and your CO found you guilty of violating Article 121, UCMJ. The Board also noted that you were properly notified of your Article 31, UCMJ rights, you accepted NJP, you were afforded the opportunity to consult with a military lawyer, you were afforded your right to appeal the NJP, and you elected not to appeal your CO’s decision. The Board determined that your CO’s reliance upon the Naval Criminal Investigative Service (NCIS) investigation, your household goods shipment and all available evidence was sufficient to meet the preponderance of evidence standard and to find that you were guilty of Article 121, UCMJ. The Board also determined that your CO’s finding of guilt during your NJP was just and within his discretionary authority pursuant to Article 15, the Manual for Courts-Marital (2016 ed.). The Board noted, too, that your page 11 entry was written and issued according to the Individual Records Administration Manual. 

Concerning your request for retirement under TERA, the Board noted that consideration for TERA would require an active component Marine to meet the following criteria: being processed for separation due to a Physical Evaluation Board, denied reenlistment due to force shaping, or demonstrating a hardship (member must first attempt to apply for a humanitarian transfer). The Board determined that, even if you had not received NJP, there is no evidence that you met the criteria for TERA and you provided none. 

Moreover, the Board in not an investigative body and relies on a presumption of regularity to support the official action of public officers and, in the absence of substantial evidence to the contrary, will presume that they have properly discharged their official duties. Accordingly, the Board concluded that there is no probable material error, substantive inaccuracy, or injustice warranting corrective action. 

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, 
5/17/2021 

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