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

Docket No: 4334-19 
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 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. 

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 2 September 1997. In June 1998 you received a “Page 11” counseling warning (Page 11) for unauthorized absence lasting two days.  The Page 11 warning provided you with written recommendations for corrective action and also advised you that a failure to take corrective action may result in your administrative separation.  On 18 March 1999, you received a second Page 11 counseling warning for disobeying a lawful general order by falling asleep on guard duty.  This Page 11 contained similar recommendations for corrective action and administrative separation warnings as the first Page 11 counseling warning.  On 12 October 2000, you received a third Page 11 counseling warning for drug abuse. 

On 29 June 2001, you went to a Special Court-Martial for dereliction of duty, the wrongful use of a controlled substance, and for sleeping on post.  You were found guilty of the drug offense and a lesser included offense of one of the remaining two charges, and, as punishment, you received a reduction in rank to private first class (E-2) and thirty days of confinement.
 
In the summer of 2001, your command notified you that you were being processed for an administrative discharge by reason of misconduct due to minor disciplinary infractions.  Unfortunately, the administrative separation notification and statement of awareness/election of rights documentation is not in your service record.  However, the Board relied 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 you, and given the narrative reason for separation and corresponding separation code as stated on your DD Form 214, the Board presumed that you were properly processed for separation and discharged from the Marine Corps.  Ultimately, on 25 September 2001, you were discharged from the Marine Corps with an Other Than Honorable (OTH) characterization of service.
 
The Board carefully weighed all potentially mitigating factors, including your contentions that included, but were not limited to:  (a) that the eligibility requirements under the Navy Military Personnel Manual 3630600 (MILPERSMAN) to process for minor disciplinary infractions was not met, (b) that counselling was not violated nor was a pattern of misconduct established, and (c) that two minor infractions should not mitigate four years of honorable service.  However, the Board found that your contentions and mitigating factors were not sufficient to upgrade your discharge or warrant any other relief in your case given the overall seriousness of your collective misconduct and disregard for good order and discipline while on active duty.
 
The Board initially noted, contrary to your contentions, that you twice received Page 11 counseling warnings providing written recommendations for corrective action and administrative separation warnings for failing to take such corrective steps.  You violated each Page 11 warning when you committed additional misconduct.  The Board noted that you cited the incorrect reference manual, the MILPERSMAN, to argue your case.  The MILPERSMAN governs Navy enlisted administrative separations.  The applicable reference manual in your case is the Marine Corps Separation and Retirement Manual (MARCORSEPMAN).  Within the MARCORSEPMAN, while you arguably may not have met the precise criteria for minor disciplinary infractions, you certainly met the MARCORSEPMAN criteria for misconduct due to:  (a) drug abuse, (b) a pattern of misconduct, and (c) commission of a serious offense.  Any potential error in your separation processing with your command selecting minor disciplinary infractions was harmless and would not have resulted in a more favorable or different discharge characterization had the error not occurred.  In fact, the Board determined that separation processing for drug abuse, a pattern of misconduct, and/or the commission of a serious offense (individually or collectively) were much more serious bases for separation and that it was fortunate your command only selected minor disciplinary infractions as the sole basis to separate you.  Additionally, the Board did not believe that your record was otherwise so meritorious as to deserve a discharge upgrade.  Moreover, 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.  The Board also determined that, in fairness to those Sailors and Marines who serve honorably and without incident, service members 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 an OTH was still appropriate.  Accordingly, the Board determined that there was no probable material error or injustice in your discharge, and the Board found that your misconduct merited your receipt of an OTH discharge. 

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. 

Sincerely,