Docket No: 10100-18 
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 21 August 2019.  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, relevant portions of your naval record, as well as applicable statutes, regulations, and policies. 
 
You enlisted in the Marine Corps and began a period of active duty on 27 September 1994.  On 1 May 1997,   you received a Page 11/6105 counseling regarding substantiated spousal abuse on 30 April 1997 in off-base housing.  You were directed to attend Domestic Violence Intervention Program (DVIP) Level 4, a 16-week program beginning on 24 May 1997.  You were advised that DVIP Level 4 was probationary and rehabilitative, but failure to comply with the program, or referral to DVIP Level 5, would result in administrative separation.  You declined to make a rebuttal statement.  On 7 May 1997, you began a period of unauthorized absence (UA) that continued until your apprehension on 30 July 1997.  On 12 September 1997, you were convicted by special court-martial (SPCM) for violating Uniform Code of Military Justice (UCMJ) Article 86 (UA) of the.  You were sentenced to forfeiture of pay, confinement, reduction in rank to E-1, and a bad conduct discharge (BCD).  On 17 August 1998, appellate review affirmed the SPCM findings and sentence, and you received a BCD discharge. 
 
You requested the Board change your discharge to general (under honorable conditions).  You asserted that you went UA to see with your own eyes that your ex-wife was cheating on you with 
a fellow Marine.  You stated that up to that point you were an outstanding Marine as evidenced by your service record.  The Board was sympathetic to your desire 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 material error or injustice in the discharge. 
 
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.