Docket No: 4858-20 
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  
25 November 2020.  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 enlisted in the Marine Corps and began a period of active duty on 25 April 1985.  On 21 November 1986, you were convicted by summary court-martial (SCM) of dereliction in the performance of duty and damaging government property.  On 12 August 1987, you received non-judicial punishment (NJP) for willful disobedience of a lawful order.    
 
On 14 October 1987, you submitted a written request for separation in lieu of trial (SILT) by court-martial for wrongfully impersonating a noncommissioned officer, resisting apprehension, and two specifications of communicating a threat.  Prior to submitting this request, you conferred with a military lawyer at which time you were advised of your rights and warned of the probable adverse consequences of accepting such a discharge.  As part of this discharge request, you admitted your guilt to the foregoing offenses and acknowledged that your characterization of service upon discharge would be other than honorable (OTH).  Your request was granted and your commanding officer was directed to issue you an OTH characterization of service by reason of separation in lieu of trial.  On 4 December 1987, pursuant to your request, you were so discharged. 
    
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 desire to upgrade your discharge and contentions that at the time of the incident you impersonated an NCO in order to prevent a fight; you were trying to intimidate two Sailors by pulling rank.  You further contend the other Marine whom you were with drove home and because he was so mad, drove through a gate while you were a passenger in the vehicle.  You further state that when you were interviewed by CID, you told them the same story and that your “public defender” offered you an OTH instead of being court-martialed.  You state that at the age of 19 years old, it seemed like the best thing to do and since your discharge, you have had a successful career and have a family.  Based upon this review, the Board concluded these potentially mitigating factors were insufficient to warrant relief.  Specifically, the Board determined that your misconduct, as evidenced by your NJP, SCM conviction, and subsequent discharge at your request to avoid trial by court-martial, outweighed these mitigating factors.  The Board noted you did not submit any documentation or advocacy letters to be considered.  Additionally, the Board relies on a presumption of regularity to support the official actions of public officers and, in the absence of substantial evidence to the contrary will presume that they have properly discharged their official duties.  Accordingly, given the totality of the circumstances, the Board determined that your request does not merit relief. 
 
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,