DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 1723-19 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 12 March 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, and applicable statutes, regulations, and policies. Regarding your request for a personal appearance, the Board determined that a personal appearance with or without counsel will not materially add to their understanding of the issues involved. Therefore, the Board determined that a personal appearance was not necessary and considered your case based on the evidence of record. You enlisted in the Marine Corps on 24 September 1996. Following your completion of “boot camp” on 20 December 1996, you were transferred to Marine Corps Base Camp to continue your initial military training. On 24 January 1997, you went into an unauthorized absence (UA) status until you returned to military authority and control on 27 January 1997. However, on 8 February 1997, you again left your duty station without legal justification or excuse and went into a UA status. On 9 March 1997 you were declared a deserter. You remained in a UA status until 26 July 1999, an absence lasting approximately 898 days. On 17 August 1999, pursuant to your guilty plea, you were convicted at a special court-martial (SPCM) of UA lasting approximately 846 days. You received as punishment 45 days of confinement, forfeitures of pay for two months, and a discharge from the Marine Corps with a bad-conduct discharge (BCD). Following completion of the post-trial appellate review process in your case on 14 June 2001, your punitive discharge was ordered executed and you were ultimately discharged from the Marine Corps with a BCD on 26 June 2001. The Board carefully weighed all potentially mitigating factors, including your contentions that included, but were not limited to: (a) you were young and stupid and went UA from a medical platoon after being misdiagnosed with a seizure disorder, (b) you do not have a seizure disorder, (c) you were held in a medical platoon for an extended period of time, and the inactivity was frustrating, (d) despite your many requests to return to regular service, you were held for a long period of time in medical, you did not know the proper channels to go through, and, because you were 19 and stupid, you went UA, (e) you regret your poor decision to go UA rather than pursuing a more appropriate course of action, (f) you are not seeking benefits but would like your DD 214 discharge status to be upgraded to one that would not be construed as misconduct, (g) you have recently graduated from Emergency Medical Technician Program at the top of your class and are prevented from pursuing your choice of career because of your discharge, and (h) you are asking for a discharge upgrade so that you can obtain national licensing as an Emergency Medical Technician via N.R.E.M.T. The Board gave liberal and special consideration to your record of service, and your contentions about any traumatic or stressful events you may have experienced and their possible adverse impact on your service. However, the Board found that your contentions and mitigating factors were not sufficient to upgrade your discharge or grant any other relief in your case given the overall seriousness of your misconduct and your disregard for good order and discipline on active duty. The Board noted that there was no credible and convincing evidence in the record of any irregularities with your medical diagnosis and/or condition. Additionally, absent a material error or injustice, the Board generally will not summarily upgrade a discharge solely for the purpose of facilitating VA benefits, or enhancing educational or employment opportunities. Lastly, the simple fact remains is that you left the Marine Corps while you were still contractually obligated to serve. You went into a UA status without any legal authority, justification or excuse, and you made no efforts over the next 28+ months to terminate your UA and face the appropriate administrative action or court-martial punishment for your offense. Accordingly, the Board determined that there was no probable material error or injustice in your discharge, and the Board concluded that your serious misconduct clearly merited your receipt of a BCD. The Board also noted that, although it cannot set aside a conviction, it might grant clemency in the form of changing a characterization of discharge, even one awarded by a court-martial. However, the Board unanimously concluded that, despite your contentions, this is not a case warranting clemency. You were properly convicted at a SPCM of serious misconduct, and the Board did not find any evidence of an error or injustice in this application that warrants upgrading your BCD. Additionally, the Board 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 the basis 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. However, even in light of the USD memo, the Board still concluded that, given the totality of the circumstances, 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 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,