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

Docket No:  7906-20 



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 17 May 2021.  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 18 September 2000. On 14 November 2001 you were convicted by civil authorities of first-degree child-rape, which occurred prior to your start on active duty.  You were sentenced to 93 months in jail, and assessed a $500 victim fee.  During the classification process, it was determined that you qualified for the Special Offender Program, and were released from custody for having already served over 150 days in confinement.  You were to complete three years of sex offender treatment and seven years of probation.  

You were initially notified that you were being recommend for separation based on a fraudulent enlistment.  However, upon review, a staff judge advocate (SJA) determined that you could not be administratively discharged by reason of fraudulent enlistment, as there was no proof that you knew about the warrant for your arrest before you began active duty.  Your conviction did not occur until well after you enlisted.  The proposed processing for fraudulent enlistment was withdrawn and you were subsequently notified that you would be processed for misconduct due to commission of a serious offense.  You elected to have your case heard before an administrative discharge board (ADB).  On 8 August 2002, the ADB found you did commit misconduct due to commission of a serious offense and recommended that you be separated from the Marine Corps with an other than honorable characterization of service.  Your commanding officer then forwarded your case to the separation authority concurring with the ADB’s findings and recommendations.  On 2 October 2002, an SJA reviewed your case and noted that you were convicted of an offense that occurred prior to entry into the Marine Corps, and therefore, your prior service misconduct could not be used in the determination of your characterization of service upon separation.  Therefore, the discharge authority was bound to characterize your service based on your overall in-service conduct.  At the time of your service a conduct average of 4.00 was required for a fully honorable characterization of service, your conduct average was 2.9. On 10 October 2002, the separation authority directed that you be discharged from the Marine Corps with a general (under honorable conditions) characterization of service.  On 29 October 2002, you were so discharged from the Marine Corps. 
 
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 have your discharge upgraded.  Based upon this review, the Board concluded these potentially mitigating factors were insufficient to warrant relief.  Specifically, the Board determined that based on your conduct average at the time of your discharge, you were assigned the appropriate characterization of service. 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,
5/26/2021 

Executive Director