DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 9522-18 Ref: Signature date Dear This letter 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 that the evidence submitted was insufficient to establish the existence of probable material error or injustice. Consequently, your application has been denied. Although you did not file your application 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 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 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 29 September 1997. On 11 March 1998, you were counseled for insubordination toward a staff noncommissioned officer and warned about the potential for administrative separation. On 12 March 1998, you were counseled that you were not recommended for promotion to PFC (E-2) due to insubordination and your belligerent attitude towards authority despite informal and formal counselings. A year later, on 22 April 1999, you received nonjudicial punishment (NJP) for conspiracy and hazing. Your punishment included forfeiture of pay, restriction, extra duties, and reduction in rank (suspended for six months). Two months later, on 26 June 1999, you received a second NJP, in addition to which the suspended portion of your 22 April 1999 NJP was vacated and executed. On 22 July 1999, you were counseled that you were not recommended for promotion to due to NJPs. Six months later, on 28 January 2000, you were convicted by summary court-martial (SUM) for violating Articles 92 and 134 of the Uniform Code of Military Justice (UCMJ). You wrongfully used your Military Police Badge at a Mexican-United States border crossing while wrongfully possessing syringes and needles that you did not declare to customs, and you made a false official statement. Your sentence included confinement and reduction in rank to E-1. Subsequently, administrative discharge action was initiated to separate you from the naval service by reason of misconduct due to commission of a serious offense. After being afforded all of your procedural rights, you elected not to consult with counsel and waived your remaining administrative rights. Your case was forwarded to the separation authority for review. Your commanding officer recommended that you be separated with an other than honorable (OTH) characterization of service. The separation authority agreed and directed that you be discharged from the Marine Corps with an OTH discharge due to commission of a serious offense. On 23 February 2000, you were so discharged. You requested the Board upgrade your discharge to honorable or general (under honorable conditions) and upgrade your reentry code, which is RE-4. You asserted the OTH, specifically for commission of a serious offense, was “heavy handed” based on the evidence and circumstances. You claimed that you did not have a good legal defense and that the incident was a misdemeanor “that was worded in such a way as to seem more serious.” You claimed that the U. S. Border Patrol considered hiring you after your discharge, but you declined the offer. Lastly, you stated that you suffer from medical issues related to your service and that an upgrade would assist you in getting VA benefits. Your application included character letters about your post-service accomplishments including employment as a government contractor, marriage and raising three daughters, and becoming an unpaid ordained minister. Additionally, you included a letter of explanation about the incident at the Mexican - U. S. Border, claiming that while stationed at you regularly crossed the Mexican border to go to dance parties. You stated at on one occasion (to “avoid a really long line”) you used your Military ID and showed your PMO badge. You do not address the impropriety of displaying these credentials in this fashion for this purpose. When asked if you had anything to declare you said that you did not, but when you were searched you had two syringes and 10 needles (a federal misdemeanor). You stated that: “although suspicious it was not illegal to possess them as a Marine or U. S. citizen” and you told your command you used them to shoot vodka into oranges. You do not address the impropriety of failing to declare that you possessed these items. The Board carefully weighed all potentially mitigating factors in your case, including your record of service and contentions, and concluded that these factors were insufficient to warrant a change to your discharge given your misconduct. With respect to your contention that your discharge was “heavy handed” and that you did not have good legal advice, the Board noted that you elected not to consult with legal counsel and waived a hearing before an administrative discharge board. Further, there is no provision of law or in Navy regulations that allows for recharacterization of service due solely to the passage of time. 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.