Docket No: 0931-20 
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, sitting in executive session, considered your application on 19 May 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, as well as applicable statutes, regulations, and policies. 
 
You enlisted in the Marines and began a period of active duty on 17 January 1996.  On 26 June 1996, you were counseled for academic failure and advised that failure to take corrective action could result in administrative separation proceedings.  On 25 July 1996, you were counseled for having a poor attitude and lack of motivation and again advised that failure to take corrective action could result in administrative separation proceedings.  On 6 February 1997, you were counseled for repeated tardiness to your appointed place of duty, not showing proper courtesy to officers and senior enlisted personal, and your lax attitude toward Marine Corps standards.  You were counseled about the potential for administrative separation and judicial proceedings.  On 27 April 1999, you received nonjudicial punishment (NJP) for providing alcohol to underage civilians in barracks rooms and drunk and disorderly conduct.  You were awarded forfeiture of pay, restriction, and reduction in rank (RIR) to E-3, which was suspended for six months.  On 25 May 2000, you were convicted by special court-martial (SPCM) for violating Article 112a (wrongful possession and/or use of LSD) of the Uniform Code of Military Justice (UCMJ).  You were sentenced to forfeiture of pay, confinement, RIR to E-1, and a bad conduct discharge (BCD).  On 27 February 2002, upon completion of appellate review, you were discharged with a BCD.  On 24 September 2013, the Naval Discharge Review Board (NDRB) informed you of their decision regarding your request for an upgraded discharge.  The NDRB determined your discharge was proper as issued and that no change was warranted. 
 
You request the Board upgrade your discharge to honorable.  You assert:  “Attempt does not constitute use.  Attempt is not the same as use.  No crime or zero to date!  Never used drugs, therefore incorrect discharge.  There was no substance abuse to merit BCD.  No proof of use of LSD.  No effects felt.”  In support of your petition, you attached a personal statement.  You claim you saved a Marine’s life when two drunk Marines were fighting and one was trying to throw the other off the third floor of the barracks.  Additionally, you claim a gunnery sergeant (GySgt) punched you in the back of the head and you lost consciousness.  Subsequently, the GySgt was punished and demoted for abusing another Marine.  You state you were never offered any help or counseling after the incident with the GySgt, and shortly thereafter, you were offered LSD, but after ingesting it, you felt no effects.  Lastly, you stated you cooperated with NCIS and the only evidence against you was your testimony that you used a Schedule 1 drug.  
 
The Board was sympathetic to your desire to change your characterization of service, but 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 fairness or clemency.  In your case, the Board determined no clemency is warranted.  The Board in its review discerned no probable material error or injustice in your discharge.  The Board noted that you provided no evidence to support your contentions.  Absent such evidence, the Board relied upon the presumption of regularity and presumed that the officials acted in accordance with governing law/policy and in good faith. 
 
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 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, 
 
7/20/2020