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

Docket No: 3036-21 

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  26 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 17 October 1990.  On 5 April 1991, you received non-judicial punishment (NJP) for two specifications of wrongful use of cocaine.  On 22 August 1994, you submitted a written request for separation for the good of the service in lieu of trial by court-martial for an unauthorized absence and wrongful use of cocaine.  Prior to submitting this request, you conferred with a military lawyer at which time you were advised of your rights and warned of the probable adverse consequences of accepting such a discharge. As part of this discharge request, you admitted your guilt to the foregoing offenses and acknowledged that your characterization of service upon discharge would be other than honorable (OTH). Your request was granted, and on 15 September 1994, you were so discharged. 

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 contention that you served in the Marine Corps with exemplary performance evaluations, but unfortunately, you became consumed and overwhelmed with loyalty and dedication of service to the Marine Corps. You further state that your OTH discharge does not accurately reflect your actual character of service with the Marine Corps, and it is causing the denial of much needed VA benefits that you earned. 

Based upon this review, the Board concluded that these potentially mitigating factors were insufficient to warrant relief.  Specifically, the Board determined that your misconduct, as evidenced by an NJP and your subsequent separation at your request to avoid trial by court-martial for an unauthorized absence and wrongful use of a controlled substance, outweighed these mitigating factors.  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,
6/14/2021 

Executive Director