Docket No: 5223-20
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 2 December 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). 
 
You enlisted in the Marine Corps and began a period of active duty on 26 October 1992.  On 25 May 1993, you received non-judicial punishment (NJP) for two specifications of disobeying a lawful order from a noncommissioned officer.  On 22 July 1993, you were convicted by summary court-martial (SCM) of two specifications of failure to go at the time prescribed to your appointed place of duty, failure to obey a lawful written order by consuming alcoholic beverages in the Bachelor Enlisted Quarters (BEQ), and two specifications of assault.  On 31 August 1993, you received your second NJP for disobeying a lawful written order by wrongfully possessing alcoholic beverages in the BEQ.  On 8 September 1993, you received your third NJP for disobeying a lawful written order by wrongfully possessing alcoholic beverages in the BEQ, failure to go at the time prescribed to your appointed place of duty, assault, disobeying your restriction orders by wrongfully wearing civilian clothes, and consuming alcoholic beverages while in a restricted status. 
 
Subsequently, on 8 September 1993, you were notified that you were being recommended for administrative discharge from the Marine Corps by reason of misconduct due to minor disciplinary infractions.  You were advised of, and waived your procedural right to consult with and be represented by military counsel, and your right to present your case to an administrative discharge board.  Your commanding officer (CO) forwarded your package to the separation authority (SA) recommending administrative discharge from the naval service with an other than honorable (OTH) characterization of service.  The SA approved the CO’s recommendation and directed your administrative discharge with an OTH characterization of service.  On 15 October 1993, you were so discharged. 
 
The Board carefully weighed all potentially mitigating factors in your case, including your desire to upgrade your discharge.  The Board considered your contention that “the record is in error or unjust because the victim was using racial slurs toward [you].”  You further state that you realized that your actions were excessive and that you regret your actions; you had never experienced racism before; you did not know how to respond to racist remarks and reacted inappropriately.  You assert that prior to the incident, in your short military career, you had obtained a 4.9/5.0 in professionalism, conduct, and a 300 Physical fitness tier consistently. 
 
After careful consideration of your contentions, the Board did not find evidence of an error or injustice that warrants upgrading your characterization of service or sufficient evidence to warrant clemency.  The Board noted that you provided no evidence to support your contentions regarding racism.  Even under the liberal consideration standard, the Board found your misconduct warranted an OTH characterization of service given the seriousness of your repeated misconduct.  
 
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.  Based upon this review, the Board concluded these potentially mitigating factors were insufficient to warrant relief.  Specifically, the Board determined that your repeated misconduct, as evidenced by your three NJPs and SCM, outweighed any mitigating factors.  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,