Docket No: 0467-20
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 the entire record, 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 13 November 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.   
 
You enlisted in the Marine Corps on 10 August 1998.  On 9 July 1999 you received non-judicial punishment (NJP) for unauthorized absence (UA), for reporting for duty without a clean shave, and for failing to obey a lawful order.  On 27 October 2000 pursuant to your guilty pleas, you were convicted at a Special Court-Martial (SPCM) of two specifications of UA, one of which lasted ninety-five (95) days.  You received as punishment, forfeitures of pay, confinement, a reduction in rank to the lowest enlisted paygrade (E-1), and a discharge from the Marine Corps with a Bad Conduct Discharge (BCD).  Following the completion of appellate review in your case, your BCD was ordered executed and on 4 September 2002 you were discharged from the Marine Corps with a BCD. 
 
The Board carefully weighed all potentially mitigating factors, including your contentions that included your exemplary post-service conduct and that your discharge was unjust because your UA was due solely to your separation from your wife due to her infidelity.  However, the Board found that your contentions and mitigating factors were not sufficient to upgrade your discharge or grant any other relief in your case given the overall seriousness of your misconduct.  
The Board observed that character of military service is based, in part, on conduct and overall trait averages which are computed from marks assigned during periodic evaluations.  Your overall active duty trait average calculated from your available performance evaluations during your enlistment was 3.70 in conduct.  Marine Corps regulations in place at the time of your discharge required a minimum trait average of 4.0 in conduct (proper military behavior), for a fully honorable characterization of service.  The Board concluded that your cumulative misconduct was in no way minor in nature and that your conduct marks during your active duty career were a direct result of your serious misconduct.  Additionally, the Board determined that Marines should receive no higher discharge characterization than is due.  The Board believed that even though flawless service is not required for an honorable discharge, in this case a punitive discharge was appropriate.  Lastly, absent a material error or injustice, the Board generally will not summarily upgrade a discharge solely for the purpose of facilitating benefits from the Department of Veterans Affairs, or enhancing educational or employment opportunities.  Accordingly, the Board determined that there was no impropriety or inequity in your discharge, and the Board found that your serious misconduct merited your receipt of a BCD. 
 
The Board also noted that, although it cannot set aside a conviction, it might grant clemency in the form of changing a characterization of discharge, even one awarded by a court-martial.  However, the Board unanimously concluded that despite your contentions this is not a case warranting clemency.  You went into a UA status without any legal justification, and the Board did not find any evidence of an error or injustice in this application that warrants upgrading your BCD.   
 
Additionally, the Board reviewed your application under the recent guidance provided in the Under Secretary of Defense’s memorandum dated 25 July 2018 entitled, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations” (USD Memo).  The purpose of the USD Memo is to ease the process for veterans seeking redress and assist Boards for Correction of Military/Naval Records “in determining whether relief is warranted on the basis of equity, injustice, or clemency.”  The USD Memo noted that “increasing attention is being paid to…the circumstances under which citizens should be considered for second chances and the restoration of rights forfeited,” and that “BCM/NRs have the authority to upgrade discharges or correct military records to ensure fundamental fairness.”  The USD Memo sets clear standards and principles to guide BCM/NRs in application of their equitable relief authority, and further explains that boards shall consider a number of factors to determine whether to grant relief, such as positive or negative post-service conduct.  The Board additionally carefully considered your post-service conduct, however, even in light of the USD Memo and reviewing the record holistically, the Board still concluded that given the totality of the circumstances your request does not merit relief.  
 
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. 
                                                                             
Sincerely,