Docket No: 4322-19 
Ref: Signature Date 


This is in reference to your application of 5 April 2019 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 that 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, relevant portions of your naval record, and applicable statutes, regulations, and policies. 

You enlisted in the Marine Corps and began a period of active service on 23 August 1999.  On 24 February 2000, you received a “page 11” counseling warning forfailingto follow orders.  On 24 September 2001, you went to non-judicial punishment (NJP) for the wrongful use of a controlled substance.  You did not appeal your NJP. 

On 8 February 2002, you were notified that you were being processed for an administrative discharge by reason of misconduct due to drug abuse.  You consulted with counsel and elected your right to present your case to an administrative separation board (Adsep Board).  On 26 April 2002, an Adsep Board convened in your case.  Following the presentation of evidence and witness testimony, the Adsep Board members determined that you the committed misconduct as charged.  Subsequent to the misconduct finding, the Adsep Board members recommended that you be separated from the Marine Corps with an other than honorable (OTH) characterization of service, but voted to suspend the OTH separation.  Your commanding officer concurred and recommended to the separation authority to suspend your separation.  However, on 15 July 2002, the separation authority approved and directed your OTH discharge without suspending it.  Ultimately, on 26 July 2002, you were discharged from the Marine Corps with an OTH characterization of service. 

The Board carefully weighed all potentially mitigating factors, including your contentions that included, but were not limited to:  you made one immature mistake when you were young that doesn’t reflect the Marine and man you are today, that as an armed officer you continue to serve your country and family as a husband, father and provider, and that you ask for forgiveness for your misconduct.  However, the Board found that your contentions and mitigating factors were not sufficient to warrant upgrading your discharge or granting any other relief in your case.  The Board noted that, although one’s service is generally characterized at the time of discharge based on performance and conduct throughout the entire enlistment, the conduct or performance of duty reflected by only a single incident of misconduct may provide the underlying basis for discharge characterization.  Moreover, characterization under OTH conditions is generally warranted for misconduct.  The Board concluded that your current characterization does not reflect an error or injustice that merits corrective action. 

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, such as positive or negative post-service conduct, including any arrests or convictions.  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 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.