Docket No: 6972-20
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 16 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 5 June 1964.  On  
11 September 1967, you received non-judicial punishment for dereliction in the performance of duty.  On 1 October 1968, you were convicted by General Court-Martial of murder.  As punishment, you were awarded reduction in rank, confinement, forfeiture of pay, and a dishonorable discharge.  The Secretary of the Navy subsequently directed that your dishonorable discharged be mitigated to bad conduct discharge (BCD).  On 4 May 1970, you were discharged from the naval service with a BCD. 
 
The Board considered your contention that you were granted a presidential pardon from President Gerald Ford.  You assert that for the past 43 years, you have been trying to get your discharge upgraded.  You assert that on 19 January 1993, you received a letter that your discharge is now honorable; however, the Certificate of Release or Discharge from Active Duty (DD Form 214) states other than honorable (OTH).  

The Board noted that President Ford granted you an unconditional pardon and executive clemency in order to replace your bad conduct discharge based on the Presidential Proclamation.  The pardon restored any federal civil rights that you lost upon your criminal conviction for your offense.  The pardon also restored certain state civil rights, such as your right to vote and to obtain a license to work.  However, the pardon, in and of itself, did not erase, expunge, or overturn your conviction.  The Board also noted that the letter you received in 1993 was from the Department of Veterans Affairs (VA), informing you that your character of service was upgraded in accordance with their guidelines.  The Board advises that decisions reached by the VA to determine if former service members rate certain VA benefits, do not affect previous discharge decisions made by the Department of the Navy (DON).  The criteria used by the VA in determining whether a former service member is eligible for benefits are different than that used by the DON when determining a member’s discharge characterization. 
 
The Board has no authority to set aside a court-martial conviction and must limit its review to determining whether the sentence should be modified as a matter of clemency.  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 your contentions as described above.  However, based upon this review, the Board concluded these potentially mitigating factors were insufficient to warrant relief.  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 the 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,