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

Docket No: 1462-19
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 26 February 2020.  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 thereo
 
You enlisted in the Marine Corps and began a period of active duty on 25 August 1982. On 20 May 1983, you received non-judicial punishment (NJP) for wrongful use of marijuana.  On 13 July 1983, you received your second NJP for incapacitation for the proper performance of duty.  Subsequently, you were notified of an administrative action to separate you from the naval service.  After consulting with legal counsel, you elected to present your case to an administrative discharge board (ADB).  An ADB was convened and recommended administrative separation from the naval service with a general (under honorable conditions) characterization of service.  Your commanding officer (CO) recommended that you be administratively discharged from the naval service with an other than honorable (OTH) characterization of service.  The Staff Judge Advocate found the proceedings sufficient in law and fact and recommended administrative discharge with a general (under honorable conditions) characterization of service.  On 18 January 1985, the discharge authority directed that you be administratively discharged from the naval service with a general (under honorable conditions) characterization of service.  The Board noted the discharge authority suspended the execution of your discharge for a period of twelve months and you were retained in the Marine Corps. On 12 September 1985, you received your third NJP for destruction of government property.
 
On 10 February 1986, you submitted a written request for separation in lieu of trial by court-martial for wrongful use of marijuana.  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.  As part of this discharge request, you admitted your guilt to the wrongful use of marijuana and acknowledged that your characterization of service upon discharge would be other than honorable (OTH).  Your request was granted and your commanding officer was directed to discharge you with an OTH characterization of service by reason of separation in lieu of trial by court-martial.  On 18 March 1986, pursuant to your request, you were so discharged. 

The Board carefully weighed all potentially mitigating factors, including your desire to upgrade your discharge.  The Board considered your contention that you were unfairly accused of committing an assault against another Marine when you were stationed in Japan prior to reporting to your next duty station and found not guilty.  You were unfairly treated by your new command and forced to take the OTH discharge or be forced to go to a court-martial, which you should not have been subjected to.  The Board concluded that these factors were insufficient to warrant relief in your case because of the seriousness of your repeated misconduct that resulted in three NJPs and subsequent discharge at your request to avoid trial by court-martial.  Regarding your contention that you were forced to take the OTH discharge or go to a court-martial, there is no evidence in your record and you presented none to support your contention.  Additionally, the Board noted that you were given an opportunity to earn a better characterization of service when you were retained in the Marine Corps, but failed to do so as evidenced by your continued misconduct.  Under the totality of the circumstances, the Board 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,