Docket No: 10999-18 
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 18 December 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. 
 
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 issues 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 and began a period of active duty on 30 October 1975.  On 27 January 1977, you received non-judicial punishment (NJP) for an unauthorized absence totaling 17 days.  On 21 June 1977, you submitted a written request for separation for the good of the service, in lieu of trial by court-martial, for willful disobedience, disrespect toward a noncommissioned officer on two occasions, and wrongfully communicating a threat.  Prior to submitting this request, you conferred with a qualified military lawyer at which time you were advised of your rights and warned of the probable adverse consequences of accepting such a discharge.  Your request was granted and your commanding officer was directed to issue you an other than honorable (OTH) discharge by reason of good of the service and on 8 August 1977, you were discharged. 
 
The Board carefully weighed all potentially mitigating factors, such as your request to upgrade your discharge.  The Board considered your contention that you was told that you could get your discharge upgraded after six months from your discharge; you have been lied to, time after time and excuses after excuses.  The Board concluded these factors were not sufficient to warrant relief in your case because of the seriousness of your misconduct and subsequent discharge in lieu of trial by court-martial.  The Board believed that clemency was extended to you when your request for discharge was approved since, as a result of this action, you were spared the stigma of a court-martial conviction, the potential penalties of a punitive discharge, and confinement at hard labor.  In regard to your contention, there is no provision of law or in Navy regulations that allows for recharacterization of service due solely to the passage of time.  In view of the forgoing, the Board discerned no material error or injustice in the discharge action that would warrant a change in your characterization of service. 
 
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,