Docket No: 856-20
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 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 for Correction of Naval Records, sitting in executive session, considered your application on 13 November 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. 
 
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. 
 
You enlisted in the Marine Corps on 21 March 1990.  During the period from 19 September 1990 to 27 May 1992, you received four non-judicial punishments (NJP) for failure to go to appointed place of duty, driving your POV while on base revocation, two specifications of absence from appointed place of duty, disobeying a lawful order, having a female in the barracks, and wearing an earring in your ear.  Subsequently, you were notified of pending administrative separation action by reason of misconduct due to minor disciplinary infractions.  You elected to consult with legal counsel and subsequently requested an administrative discharge board (ADB).  The ADB found that you committed misconduct due to minor disciplinary infractions and recommended you receive an other than honorable (OTH) discharge due to minor disciplinary infractions.  The discharge authority concurred with the ADB and directed an OTH discharge by reason of misconduct.  On 19 November 1993, you were discharged. 
 
The Board carefully weighed all potentially mitigating factors, such as your post service conduct, your desire to upgrade your discharge, and contention that you served your country and the Marine Corps honorably.  The Board also noted your contentions that: (a) your Lieutenant (LT) refused to accept the severity of your injury, ordered you to return to base disregarding the doctor’s recommendation, processed you for separation without a reason, and refused to do right by you and made it very clear; (b) you reported to the LT that your room was broken into and the LT did nothing about it; (c) your military record, behavior, and service does not reflect an OTH discharge; and (d) since discharge, you fathered two sons, went to college, received a degree, and pursued a career in informational technology.  In this regard, the Board concluded that you’re the misconduct detailed in your service record and ADB recommendation outweighed your desire to upgrade your discharge.  
 
Regarding your contention that you served your country and the Marine Corps honorably, the Board noted that a Marine’s service is characterized at the time of discharge based on performance during the current period of enlistment.  Regarding your contentions that your LT refused to accept the severity of your injury, ordered you to return to base disregarding the doctor’s recommendation, and refused to do right by you and made it very clear, the Board noted that there is no evidence in your record, and you submitted none, to support your contentions.  The Board also noted that you requested an ADB and the ADB determined you committed misconduct and recommended you be discharged for the Marine Corps.  In regard to your contentions that your LT processed you for separation without a reason and your military record, behavior, and service does not reflect an OTH discharge, the Board noted that the record contains documented evidence which is contrary to your contentions. Regarding your contention that you reported to the LT that your room was broken into and the LT did nothing about it, the Board noted that the record contains documented evidence which is contrary to your contention.  The Board noted that the record clearly shows that on 21 June 1993, an investigation by the Naval Criminal Investigative Service noted that all leads in the case were exhausted, which resulted in your case ending with a successful conclusion.  Regarding your contentions that since discharge, you fathered two sons, went to college, received a degree, and pursued a career in informational technology, the Board noted while commendable, your post service conduct does not excuse your conduct while enlisted in the Marine Corps or the basis for your discharge. 
 
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, the length of your active duty service to our nation, and your post-discharge achievements. .  However, even in light of the USD Memo, the Board still concluded given the totality of the circumstances, your request does not merit relief.  
 
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,