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

Docket No: 3190-19 
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. 

A three-member panel of the Board, sitting in executive session, considered your application on 30 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 18 March 2013.  On 22 March 2015, you received a “Page 11” counseling warning(Page 11) noting the following deficiency:  substandard demonstrated performance of duty for your lack of sound judgment due to your unauthorized absence (UA).  On 15 June 2015, you received two separate Page 11 counseling warnings documenting your substandard demonstrated performance of duty due to UA periods on 25 March 2015 and 30 March 2015.  On 18 June 2015, you went to non-judicial punishment (NJP) for UA, and you were issued another Page 11 documenting the NJP.  On 18 June 2015, you also received a Page 11 warning for failing to arrive at work at the appointed time.
 
On 5 October 2015, you were notified that you were being processed for an administrative discharge for being an alcohol rehabilitation failure.  The underlying factual basis as described on your notification was as follows: 

FACTUAL BASIS:  SNM was recommended for inpatient Level III treatment by competent medical authority (Substance Abuse Rehabilitation Authority – Naval Hospital ) on 7 July 2015. SNM was subsequently enrolled in an inpatient Military Treatment Facility and was subsequently disenrolled by the staff due to unsatisfactory performance in the form of a significant lack of motivation and an inability to show progress.  The decision to disenroll SNM was also made due to two instances of failure to follow staff and program guidelines and aggressive and threatening behavior towards staff members.  Overall, SNM refused to endorse the diagnosis the staff made and made attempts to influence existing patient population in a negative manner. 

You elected to consult with counsel and include a written rebuttal statement to the proposed separation.  While your discharge was pending, on 26 January 2016, your command issued you a Page 11 warning for failing to show up for work and physical training on time.  On 8 March 2016, the Staff Judge Advocate (SJA) for Marine Aerial Refueler , Marine Air , reviewed your case and determined that your separation proceedings were legally and factually sufficient.  Ultimately, on 23 March 2016, you were separated from the Marine Corps with a general (under honorable conditions) (GEN) characterization of service, and assigned an “RE-04” reentry code.  On 23 October 2019, the Naval Discharge Review Board (NDRB) determined that your discharge was equitable and proper as issued and no change was warranted. 

The Board carefully weighed all potentially mitigating factors, such as your contentions that included, but were not limited to:  (a) there was no pattern of alcohol-related misconduct either during your enlistment or post-service, (b) you have never received a Page 11 or NJP or any other form of reprimand while in the military, nor have you received any sort of civilian alcohol-related charges, (c)  used fraudulent documentation to document a pattern of misconduct to SARP , and that the SARP verified the false documentation, (d) that an alcohol-related discharge with zero incidents of alcohol-related misconduct is wrong and should be overturned so that you can have access to educational benefits, and (e) that you want to meet the eligibility requirements to serve in a reserve unit or state national guard.  However, the Board determined these mitigating factors and contentions were not sufficient to warrant changing your reentry/reenlistment code or granting any other relief in your case. 

The Board initially noted, contrary to your contentions, that in addition to your six Page 11 counselings, you did have an NJP in your record prior to discharge.  The Board also relied 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 you, the Board presumed that you were properly processed for separation and discharged from the Marine Corps.  The Board also concurred with NDRB’s determination that your statements alone did not overcome thegovernment’s presumption of regularity.  Moreover, theBoard observed that the command SJA determined that your discharge for alcohol rehabilitation failure was legally and factually sufficient.  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, there is no provision of federal law or in Navy/Marine Corps regulations that provides for a discharge to be upgraded based solely on the passage of time or good post-service conduct.  Accordingly, the Board determined that there was no probable material error or injustice in your discharge and narrative reason for separation, and that your discharge complied with all applicable Department of the Navy directives and policy. 

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 your request does not merit relief.
 
Additionally, the Board determined that, in fairness to those Sailors who serve honorably and without incident, Sailors should receive no higher discharge characterization than is due.  The Board believed that, even though flawless service is not required for an honorable discharge, in this case a GEN discharge is appropriate.  Accordingly, the Board still similarly concluded after reviewing the record holistically and given the totality of the circumstances, that you only merit a GEN characterization of service and no higher, and that the reentry code should remain “RE-04.” 

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,