Docket No: 3973-19 
Ref: Signature Date 

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 21 May 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 and began a period of active duty on 28 September 1967. 

On 6 December 1968, you were convicted by summary court-martial (SCM) of failure to obey a lawful order and incapacitated for duty due to indulgence in intoxicating liquor.  On 28 February 1969 and 15 March 1969, you received non-judicial punishment (NJP) for absence from your appointed placed of duty, failure to obey a lawful order, and resisting apprehension.  On 25 March 1969, you were again convicted by SCM of incapacitated for duty due to indulgence in intoxicating liquor.  On 9 April 1969, you were convicted by special court-martial (SPCM) of three specifications of failure to obey a lawful general order, to wit: violate a lawful general order, by wrongfully being in an off-limits area, wrongfully being outside a military installation after 2000 hours, and wrongfully not having a weapon in your possession.  As punishment, you were awarded confinement, forfeiture of pay, and discharge from the naval service with a bad conduct discharge (BCD).  After the BCD was approved at all levels of review, you were discharged on 3 October 1969. 

The Board carefully weighed all potentially mitigating factors in your case, including your desire to upgrade your discharge.  The Board considered your contention that you believe that the Marine Corps made your discharge seem worse than it was.  You assert that your discharge should have been no less than a general discharge, because the infractions were not that severe.  The Board has no authority to set aside a court-martial conviction and must limit its review to determining whether the sentence should be modified as a matter of clemency.  Your request was fully and carefully considered by the Board in light of the Secretary of Defense’s 25 July 2018 memorandum, “Guidance to Military Discharge Review boards and Boards for Correction of Military/Naval Records Regarding Equity, Injustice, or Clemency Determinations.”  The Board determined that no clemency is warranted in your case.  In this regard, the Board considered your contentions but concluded that there was insufficient evidence to warrant clemency given the severity of your repeated misconduct that resulted in a BCD.  In its review, the Board discerned no material error or injustice in your discharge, nor did it find that clemency was warranted. 

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.