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

Docket No: 1678-19 
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 18 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 thereof, relevant portions of your naval record, as well as applicable statutes, regulations, and policies.
 
You enlisted in the Marine Corps on 5 May 1992. According to the information in your record, on 26 May 1994, you were counseled due to an alcohol-related event, specifically, public intoxication, and provided recommendations on where to seek assistance.  On 10 August 1994, you received non-judicial punishment (NJP) for resisting arrest and drunk and disorderly conduct.  On 6 January 1995, you completed the level III rehabilitation program at the Naval Alcohol Rehabilitation Center.  On 26 January 1995, you received NJP for being incapacitated for the performance of duty.  Although the Board lacked your entire service record, the Board relied on a presumption of regularity that you were notified of the recommendation that you be discharged by reason misconduct due to minor infractions.  You elected to go before an administrative discharge board (ADB).  The ADB recommended that you be separated from the Naval service.  Subsequently, your Commanding Officer (CO) recommended that you be discharged with an other than honorable (OTH) characterization of service by reason of misconduct due to minor infractions.  The separation authority approved this recommendation and directed your OTH discharge by reason of misconduct – minor disciplinary infractions.  On 22 June 1995, you were discharged. 

As stated previously, the Board relies on a presumption of regularity to support the official actions of public officers and, in the absence of substantial evidence to rebut the presumption, to include evidence submitted by the Petitioner, the Board presumes that you were properly discharged from the Marine Corps. 

The Board carefully weighed all potentially mitigating factors, such as your desire to upgrade your discharge and your contentions that the Department of Veterans Affairs (VA) shows your character of service as honorable and you need VA benefits.  However, the Board concluded that these factors were not sufficient to warrant relief in your case given the seriousness of your misconduct and alcohol rehabilitation failure. The Board discerned you probable material error or injustice in your discharge that warrants upgrading the character of your service. 

In regard to the contention that the VA shows your character of service as honorable, the Board noted that the VA only has the authority to determine your eligibility for VA benefits.  The Board also noted that the decision of the VA does not have the authority or ability to change your naval record.  Regarding your contention that you need VA benefits, whether or not you are eligible for benefits is a matter under the cognizance of the VA, and you should contact the nearest office of the VA concerning your right to apply for benefits.  If you have been denied benefits, you should appeal that denial under procedures established by the VA.
 
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,