DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 1783-18 7597-98 Ref: Signature Date This letter is in reference to your reconsideration request of 27 February 2018. You previously petitioned the Board for Correction of Naval Records (Board) and were advised that your application had been disapproved. Your case was reconsidered in accordance with Board procedures that conform to Lipsman v. Sec’y of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004). After careful and conscientious consideration of the entire record, the Board found that 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 15 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 together with all materials submitted in support thereof, relevant portions of your naval record, two Advisory Opinions (AO) dated 3 July and 8 July 2019 from the Office of the Judge Advocate General of the Navy, your rebuttal to the AOs, and applicable statutes, regulations and policies. Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel would not materially add to its 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 originally enlisted in the Marine Corps on 3 November 1970. Your last reenlistment was on 20 February 1987, for a period of 3 years while serving in the paygrade E-6. On 25 June 1990, you were selected for promotion to E-7. Even though your end of active obligated service (EAS) was 19 February 1990, you were properly held beyond your EAS for your first General Court­Martial (GCM1) that took place on 23 May, and 17-21 July 1990. Contrary to your pleas, you were convicted of false claims, and dishonorably failing to provide support to your dependents. Your sentence included reduction to the lowest enlisted rank, forfeitures of pay, and your first discharge from the Marine Corps with a Bad Conduct Discharge (BCD1). On 5 April 1991, the Convening Authority (CA) approved the sentence as adjudged. Subsequently, on 4 June 1991, you were removed from the E-7 promotion list. On 27 November 1991, the Naval Clemency and Parole Board (NCPB) remitted the adjudged BCD and recommended restoration upgrade. However, your command requested a reconsideration of the NCPB decision due to continuing unsatisfactory conduct. On 12 February 1992, the NCPB reconsidered their decision and again ordered your BCD to be remitted. In the interim, on 27 January 1992, you were notified that you were pending unrelated charges that would eventually become the subject of a second General Court-Martial (GCM2). On 27 April 1992, the Navy-Marine Corps Court of Military Review (NMCMR) set aside the GCM1 findings of guilty, dismissed other charges and specifications, and set aside the sentence. The Office of the Judge Advocate General ordered the CA to restore all rights, privileges and property of which you had been deprived. According to a MCAS PSD Pay Entitlement Memo, you were restored to SSgt (E-6) as of 5 April 1991, the date of the CA’s action in GCM1. However, also on 27 April 1992, you were arraigned on fraud-related charges at GCM2. On 15 June 1992, contrary to your pleas, you were found guilty of filing two false claims and sentenced to a reduction to the lowest enlisted rank, forfeitures of pay, 120 days of confinement, and a second Bad Conduct Discharge (BCD2). On 23 October 1992, the CA approved the sentence as adjudged. On 18 November 1992, you were placed on involuntary appellate leave (IAL) awaiting the execution of your punitive discharge. On 11 January 1993, the NCPB determined that no clemency should be granted for GCM2. On 30 June 1993, your command terminated your IAL for writing bad checks to the Marine Federal Credit Union. You failed to report back at the time prescribed and remained in an unauthorized status (UA) for 133 days. Following NMCMR’s affirming the GCM2 findings and sentence and the completion of the post-trial appellate review process in your case, on 18 November 1993 you submitted a request for an immediate execution of BCD2. Ultimately, you were discharged from the Marine Corps with BCD2 on 2 December 1993. The Criminal Law Division of the Navy’s Office of the Judge Advocate General (OJAG Code 20), reviewed your contentions and the available records, and provided the Board an AO dated 3 July 2019. OJAG Code 20 concluded that neither the NCPB, nor the NMCMR actions with regards to GCM1 negated jurisdiction over you for purposes of GCM2. Moreover, OJAG Code 20 determined that nothing in the record suggests that you were discharged from the Marine Corps following GCM1, or that court-martial jurisdiction was lost over your subsequent misconduct forming the basis of GCM2. Additionally, OJAG Code 20 concluded that the CA retained jurisdiction over you for GCM2, and that GCM2 was lawfully administered in accordance with the Uniform Code of Military Justice (UCMJ) and the Manual for Courts-Martial. The Board carefully weighed all potentially mitigating factors and your contentions that included, but were not limited to, those arguments that you outlined in the attached letter and personal statement accompanying your petition, and in your rebuttal to the AOs. However, the Board found that your contentions and mitigating factors were insufficient to warrant relief in your case and substantially concurred with the OJAG Code 20 AO. The Board determined that between April 5, 1991 when the CA approved the GCM1 sentence, and 27 January 1992, when you were notified of the pending the GCM2 charges, that you were duly retained in a duty status in the USMC. In other words, by committing additional UCMJ offenses in September and October 1991 before receiving an official discharge, such offenses coupled with the command initiating action with a view to trial, the Board concluded that you were properly retained in the service for GCM2. Accordingly, the Board concluded that at all relevant times, you were not discharged from the Marine Corps following either the NCPB and/or NMCMR actions, and that the government properly retained court-martial jurisdiction over you for purposes of GCM2. Further, during the NCPB clemency and appellate review process for GCM2, no substantive, evidentiary, or procedural defects were discovered. The Board also noted that, contrary to your contentions, that there is evidence in the record to show you were properly restored to E-6 following the NMCMR GCM1 set-aside decision. Additionally, given that the command took the proper steps to retain personal jurisdiction for GCM2, any continuing argument that you were technically beyond your EAS at such time and should have been discharged is baseless and entirely without merit. Accordingly, the Board determined that there was no probable material error or injustice in your GCM2 conviction and discharge, and that your misconduct clearly supported your receipt of BCD2. The Board also noted that, although it cannot set aside a conviction, it might grant clemency in the form of changing a characterization of discharge, even one awarded by a court-martial. However, the Board unanimously concluded that, despite your contentions, this is not a case warranting any clemency. The fact remains that you were properly convicted at GCM2 of serious financial misconduct, and the Board did not find any evidence of an error or injustice in this application that warrants upgrading your BCD2. Additionally, the Board reviewed your application under the recent guidance provided in the Under Secretary of Defense’s memorandum dated 25 July 2018 entitled, “Guidance to Military Discharge Review Boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations” (USD Memo). The purpose of the USD Memo is to ease the process for Veterans seeking redress and assist Boards for Correction of Military/Naval Records “in determining whether relief is warranted on the basis of equity, injustice, or clemency.” The USD Memo noted that “increasing attention is being paid to…the circumstances under which citizens should be considered for second chances and the restoration of rights forfeited,” and that “BCM/NRs have the authority to upgrade discharges or correct military records to ensure fundamental fairness.” The USD Memo sets clear standards and principles to guide BCM/NRs in application of their equitable relief authority, and further explains that boards shall consider a number of factors to determine whether to grant relief. However, even in light of the USD Memo, the Board still concluded that, given the totality of the circumstances and your misconduct, your request does not merit relief. Regarding your contention that your DD Form 214 issued 2 December 1993 does not reflect your “entire record of service” commencing 3 November 1970, the Armed Forces ceased issuing consolidated DD Form 214s in the 1980s and your current discharge correctly reflects your net active service for your last period of service, as well as your total prior active service, for total service of 22 years and 11 months. You were previously issued separate DD Form 214s for your prior periods of active duty service. It is regretted that the circumstances of your reconsideration petition 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 the absence of new matters for reconsideration, the decision of the Board is final, and your only recourse would be to seek relief, at no cost to the Board, from a court of appropriate jurisdiction. 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, 9/24/2019