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

Docket No: 7164-18                                     
Ref: Signature Date 

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 25 September 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 material submitted in support thereof, 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 24 March 1975.  On 6 February 1978, you were in an unauthorized absence (UA) status from your unit until your surrender on 17 July 1980, a period of 890 days.  During your period of UA on 18 May 1980, you were convicted in civil court of two counts of assault and sentenced to seven months confinement in the    County Jail.  On 21 August 1980, you made a written request for discharge for the good of the service to avoid trial by court-martial for the foregoing period of UA.  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 the separation authority directed that you be discharged with an other than honorable (OTH) characterization of service.  As a result of separation in lieu of trial, you were spared the stigma of a court-martial conviction and the potential penalties of a punitive discharge and confinement at hard labor. On 5 September 1980, pursuant to your request, you were discharged under OTH conditions. 

The Board carefully weighed all potentially mitigating factors in your case, including your contentions that you are “totally disabled due to [your] military service,” and that you were exposed to “hazardous materials.” However, the Board concluded that these factors were insufficient to warrant relief in your case because of the seriousness of your misconduct that resulted in a period of UA lasting more than two years and four months, and your request for discharge to avoid trial for that misconduct.  Regarding your contentions, the Board relies on a presumption of regularity to support the official actions of public officers and, in the absence of substantial evidence to the contrary, will presume that they have properly discharged their official duties.  The Department of Veterans Affairs (DAV), not the Board, determines eligibility for post-service benefits.  There is no requirement or law that grants recharacterization solely on the issue of obtaining Veterans benefits.  You may contact the nearest office of DVA concerning your right to apply for benefits.  If you have been denied benefits, you may appeal that denial under procedures established by the DVA.  The Board, in its review, discerned no probable 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. 

Sincerely, 


10/17/2019