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

Docket No: 2089-19 
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 2 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 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 22 October 2001.  On 19 August 2003, you received a “Page 11” (Page 11) written counseling warning documenting a brief period of unauthorized absence (UA), Article 86 (Uniform Code of Military Justice (UCMJ)), using disrespectful language toward an NCO, and two separate instances of failing to obey a lawful order (Article 92 UCMJ).  You did not submit a written rebuttal. 

On 23 November 2004, pursuant to your guilty plea, you were convicted at a Special Court Martial (SPCM) of three separate specifications of larceny.  The larceny charges involved the theft of lawn mowers from base housing residences.  You received as punishment 30 days of confinement, reduction to the lowest enlisted rank, 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 18 July 2005, your punitive discharge was ordered executed and you were ultimately discharged from the Marine Corps with a BCD on 29 July 2005. On 20 November 2018, the Naval Discharge Review Board (NDRB) determined that your discharge was proper as issued and that no change was warranted.  The NDRB noted that your disregard for Marine Corps regulations through repeated misconduct was inconsistent with Marine Corps standards of discipline. 

The Board carefully weighed all potentially mitigating factors, including your contentions that included, but were not limited to:  (a) the UCMJ Article 86 and Article 92 charges should be dropped from your record because they are biased, (b) that you never knew you were charged with both articles, and (c) that a Staff Sergeant deliberately forgot to file leave papers putting you into a UA status.  However, the Board found that your contentions and mitigating factors were insufficient to remove the Page 11 from your record, 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 determined, contrary to your contentions, that there is no credible and convincing evidence in the record to substantiate that the performance and conduct deficiencies noted on your Page 11 were the result of bias or harassment.  The Board relies on a presumption of regularity to support the official actions of public officers.  In the absence of substantial evidence to rebut the presumption, to include evidence submitted by the Petitioner, the Board presumed that you were properly issued the Page 11 warning.  The Board also noted that the Article 86 UA period noted on your Page 11 warning referred to being absent for less than one day, and not a typical leave period lasting multiple days.  Additionally, absent a material error or injustice, the Board generally will not summarily upgrade a discharge or correct a military record solely for the purpose of facilitating VA benefits, or enhancing educational or employment opportunities.  Accordingly, the Board did not find a material error or injustice with your August 2003 Page 11 warning, and unanimously denied your request to have the Page 11 removed from your record or grant any other relief.  The Board concluded that your Page 11 entry for UCMJ Articles 86 and 92 was proper and in compliance with all Navy/Marine Corps directives and policy. 

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 any clemency.  The fact remains that 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 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 or injustice. 

Sincerely,