Docket No: 5298-20 
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 was denied.    
 
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. 
 
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 14 October 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, applicable statutes, regulations, and policies to include the 25 July 2018 Under Secretary of Defense Memo on Guidance to Military Discharge Review Boards and Boards for Correction of Military / Naval Records Regarding Equity, Injustice, or Clemency Determinations.   
  
You enlisted in the Marine Corps and began a period of active duty on 26 June 2002.  On 28 January 2004, you were not recommended for promotion.  On 3 June 2005, you were counseled for a lack of initiative, good sound judgment, and desire to grow professionally as a Non Commissioned Officer.  On 11 September 2005, you were convicted, pursuant to a pretrial agreement, of False Official Statement, Assault, Reckless Conduct, and Conspiracy at a Summary Court-Martial (SCM).  The case was originally referred to a Special Court-Martial, but you agreed in the PTA to plead guilty at a SCM.  Subsequently, administrative separation action by reason of Misconduct was initiated.  On 21 September 2005, you waived counsel and an administrative board.  Your battalion Commanding Officer (CO) recommended administrative separation with an Under Other than Honorable Conditions (OTH) discharge.  On 24 September 2005, the Separation Authority directed you be administratively separated with an OTH discharge.  On 25 October 2005, you were administratively separated with an OTH discharge.   
 
You requested an upgrade of your discharge to Honorable.  You stated the presumption of regularity does not apply in your case because your conduct, proficiency marks, behavior and efficiency ratings were good.  In addition, you asserted your decorations include meritorious promotion to Lance Corporal and a Good Conduct Medal as well as having served a combat tour in Iraq.  You also asserted you made an impulsive decision that ruined your Marine Corps career.  You asserted there was a widespread problem with Marines huffing compressed air cleaner and the CO said consequences would be severe.  When you saw a Marine in the living quarters inhaling compressed air cleaner, you confronted him and he laughed at you.  You asserted your first instinct was to light the air as he exhaled, he was burned, and you lied to the medical officer to protect your subordinate.  Finally, you asserted a subsequent investigation led to your being court-martialed.  You asserted you were given a 15-minute interview with your counsel and he stated it was best to take a plea deal and an OTH.  In reviewing the circumstances of your separation and characterization of service, the Board considered the totality of the circumstances to determine whether relief is appropriate today in the interests of justice in accordance with guidance provided by the Under Secretary of Defense for Personnel and Readiness (Wilkie Memo of 25 July 2018).  Accordingly, the Board considered and acknowledged your positive contributions to the Marine Corps and your post-discharge achievements.  Even considering these potentially mitigating factors in accordance with the above referenced guidance, the Board did not find that relief was in the interest of justice.  The Board concluded that your OTH discharge characterization was issued without error or injustice, and that corrective action is not warranted. 
 
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,