DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 161-19 Ref: Signature Date Dear This is in reference to your application of 11 November 2018 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. A three-member panel of the Board, sitting in executive session, considered your application on 9 April 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 and personal statement, together with all material submitted in support thereof, relevant portions of your naval record, and applicable statutes, regulations, and policies. You enlisted in the Marine Corps and began a period of active duty on 12 February 1975. On 28 October 1975, you went to non-judicial punishment (NJP) for unauthorized absence (UA), and for failing to obey a lawful order. On 25 February 1976, you went to NJP for failing to obey a lawful order, and for disrespectful language and deportment towards a non-commissioned officer. On 13 March 1976, you went to NJP for dereliction in the performance of duty and for disobeying a lawful order. On 18 March 1976, you received a written page 11 counseling warning (Page 11) documenting your poor performance of duty, poor attitude, and frequent involvement with military authorities. The Page 11 also informed you that continued deficiencies may lead to an administrative separation. On 10 February 1977, you received a written Page 11 documenting that you were not recommended for promotion due to your undependability. On 1 April 1977, you received a written Page 11 documenting that you were not considered for promotion due to your UA status. On 10 May 1977, you submitted a voluntary written request for an undesirable discharge for the good of the service to avoid trial by court-martial for your forty (40) day UA period. Prior to submitting this discharge request, you conferred with a military lawyer, at which time you were advised of your rights and warned of the probable adverse consequences of accepting such a discharge. As a result of this course of action, you were spared the stigma of a court-martial conviction, as well as the potential sentence of confinement and the negative ramifications of receiving a punitive discharge from a military judge. On your personal statement accompanying your undesirable discharge request, you stated, in part: “I would like this discharge because Iam no longer fit for the Marine Corps. I am getting tired of the things I have to do in my company and I don’t get along with my fellow Marines anymore… I already have a job lined up when I do get out of the Marines. I will be working on a ranch in I have been trying to adjust to the Marine Corps’ ways for two and one-half years and I just can not do it…I fully understand the various veterans benefits I may be deprived of, should I be discharged under conditions other than honorable. Knowing and understanding this, I still desire to be discharged under conditions other than honorable.” On 14 June 1977, you received a written Page 11 where you acknowledged that you were not recommended for reenlistment and were receiving an RE-4 reentry code due to your administrative separation. Ultimately, on 14 June 1977, you were separated from the Marine Corps with an other than honorable (OTH) discharge. The Board carefully weighed all potential and possible mitigating factors, including your contentions that you are requesting a discharge upgrade to obtain benefits, that you felt you served your country to the best of your ability, that you attempted to correct your discharge before but were unable to obtain information from the proper channels to do it, and that you cannot determine the reasoning behind your current OTH discharge. Unfortunately, the Board determined your mitigating factors and contentions were not sufficient to warrant upgrading your discharge or granting any other relief in your case given your voluntary request for an undesirable discharge in lieu of a trial by court-martial, and the overall seriousness of your pattern of misconduct. Moreover, the Board observed that there is no provision of federal law or in Marine Corps regulations that mandates or provides for a discharge to be automatically upgraded after a specified number of years. The Board also noted, contrary to your contentions, that you did not earn a Good Conduct Medal. Additionally, characterization under OTH conditions is generally warranted for misconduct, and is appropriate when the basis for separation is the commission of an act or acts constituting a significant departure from the conduct expected of a Marine. Lastly, absent a material error or injustice, the Board generally will not summarily upgrade a discharge solely for the purpose of facilitating U.S. Department of Veterans Affairs (VA) benefits, or enhancing educational or employment opportunities. The Board also 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 thebasis 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, including negative post-service conduct, such as any arrests, criminal charges, or any convictions. Accordingly, even in light of the USD Memo, the Board still concluded that, given the totality of the circumstances and your discreditable involvement with military authorities, your request does not merit relief. 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. Sincerely,