DEPARTMENT OF THE NAVY 
BOARD FOR CORRECTION OF NAVAL RECORDS 
701 S. COURTHOUSE ROAD, SUITE 1001 
ARLINGTON, VA 22204-2490 

Docket No: 732-20 
Ref: Signature Date 

Dear

This letter is in reference to your 9 January 2020 reconsideration request. You previously petitioned the Board for Correction of Naval Records (Board) and were advised that your application had been disapproved.  Your case was reconsidered in accordance with Board procedures that conform to Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004).  After careful and conscientious consideration of the entire record, the Board found the evidence submitted was insufficient to establish the existence of probable material error or injustice.  Consequently, your application has been denied. 
  
A three-member panel of the Board, sitting in executive session, considered your application on 9 March 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 served in the Marine Corps from 7 February 1973 to 21 May 1976.  During your enlistment, you suffered a leg injury in basic training that required hospitalizations and surgery.  From 27 August 1973 through 25 September 1975, you incurred nine nonjudicial punishments (NJPs) and one summary court-martial conviction for various infractions.  On 11 September 1975, an administrative separation board recommended that you be discharged from the Marine Corps.  Following the administrative board’s recommendation, you received two more NJPs.  On 19 February 1976, your case was reviewed by a physical evaluation board (PEB), and you were recommended for 20% disability rating.  On 10 March 1976, the Physical Review Counsel (PRC) approved the PEB’s recommendation and referred it to the Secretary of the Navy (SECNAV) via the Commandant of the Marine Corps (CMC).  The PEB’s recommendation was disagreed with at the CMC level, and the CMC recommended that you receive an undesirable discharge.  On 9 April 1976, you received another NJP.  On 21 May 1976, you were discharged from the Marine Corps with an other than honorable (OTH) characterization of service and a reentry (RE) code of RE-4. In 1977, the Naval Discharge Review Board considered your request for a medical discharge but found that corrective action was not warranted. You subsequently petitioned this Board for relief. 

You seek reconsiderations for two previous decisions of this Board, issued in 1978 and 2016, respectively, which denied your request for a change to your OTH characterization of service.  In your reconsideration request, you seek an upgrade to your characterization of service to general or honorable, and a disability separation.  You provide new materials, including (1) a personal declaration, (2) a 1977 General Accounting Office (GAO) report pertaining to the policy in the early 1970’s to recruit persons with behavioral problems, (3) an excerpt from the 1970’s era Navy Disability Evaluation Manual showing that dual processing for disability separation during the pendency of administrative separation proceedings was not an exception to policy, (4) a copy of the Marine Corps regulations in 1976 that document that there was a prohibition on retaining Marines past the expiration of their enlistment, and (5) an excerpt from the 1969 version of the Manual for Courts-Martial that show that the assault that was the basis of your summary court-martial conviction does not mean that you hit anyone. You contend, in part, that you were a Marine recruit who had difficulty meeting Marine Corps disciplinary standards yet were kept on active duty because the Corps needed members at the end of an unpopular war. The Board noted that the new materials you submit in conjunction with your reconsideration request were reasonably available during both previous Board reviews.
 
You note that your separation was flawed because it was executed without SECNAV’s approval—specifically, you note that the Assistant Judge Advocate General (Civil Law) (AJAG) was SECNAV’s delegated authority to approve PRC recommendations.  The AJAG, however, did not approve the PRC’s recommendation for a disability separation but, instead, directed that you be discharged under other provision of law.  The 2016 Board decision considered the AJAG’s action on your discharge and found that the error was harmless in that the Marine Corps was not bound by the AJAG’s action and could have resubmitted your disability case for reconsideration, and because the forwarding of your disability case despite the pending administrative separation on the basis of misconduct was an exception to policy.  You take issue with both rationales.  You assert that the Marine Corps would have no reason to submit your case for reconsideration given its recommendation for discharge.  You also state that the processing of your disability case was not an exception to policy at the time.
  
The Board noted your contentions, and considered the material you submitted in support of your claim.  The Board again agreed that the AJAG acted beyond the scope of his delegated authority by not forwarding his non-concurrence with the PRC to the SECNAV. The Board found, however, that, had your case been forwarded to the SECNAV, your misconduct likely would have overcome the recommendation of the PRC and resulted in the SECNAV’s concurrence with the CMC’s opinion that you be discharged on the basis of misconduct. The Board took particular account of the timing of the administrative actions against you, and noted that you continued to engage in misconduct after the PRC’s recommendation in March 1976.  The PRC’s recommendation for a disability discharge did not account for your misconduct that continued even after its opinion.  The Board took into account the PRC’s recommendation, the non­concurrence of the CMC and AJAG, your April 1976 NJP, and the error in not forwarding your case to the SECNAV, and found that your OTH discharge on the basis of misconduct was appropriate and does not merit corrective action.   

It is regretted that the circumstances of your reconsideration petition are such that favorable action cannot be taken.  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 the absence of new matters for reconsideration, the decision of the Board is final, and your only recourse would be to seek relief, at no cost to the Board, from a court of appropriate jurisdiction. 

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,