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

Docket No: 4427-19 
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
 
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 5 December 2019.  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 there
 
You enlisted in the Marine Corps and began a period of active duty on 13 January 2003.  On 19 August 2003, you received nonjudicial punishment (NJP) for violating a lawful order.  On 10 February 2004, you were counseled for the unauthorized use of a privately owned vehicle.  On 15 April 2004, you were counseled for fighting and public intoxication.  On 26 April 2004, you received NJP for violating a lawful order.  On 25 May 2004, you were counseled for a pattern of misconduct.  On 1 July 2004, you received NJP for failing to obey a lawful order.  On 8 July 2004, you received NJP for four occasions of failing to obey a lawful order and failing to go to your appointed place of duty. On 16 July 2004, your commanding officer requested that you be separated with a general characterization of service by reason of misconduct due to a pattern of misconduct.  On 28 July 2004, your commanding officer notified you of his intent to initiate administrative discharge action against you. On 2 August 2004, you consulted with counsel and elected to have a hearing before an administrative separations board.  On 19 August 2004, your Commanding Officer recommended to the separation authority that you be administratively separated with an other than honorable (OTH) characterization of service.  On 6 October 2004, you received NJP for failing to go to your appointed place of duty and making a false official statement.  On 7 October 2004, you waived your right to a hearing before an administrative separations board.  On 2 December 2004, you were convicted at a Summary Court-Martial (SCM) of indecent assault.  On 10 December 2004, you consulted with counsel and again elected to waive your right to a hearing before an administrative separations board. On 19 December 2004, your commanding officer re-notified you of administrative discharge action and recommended an OTH discharge. On 20 December 2004, your commanding officer forwarded his recommendation to the separation authority.  On 10 January 2005, the staff judge advocate to the separation authority found the package legally sufficient and recommended approval of administrative separation with an OTH discharge.  On 19 January 2005, the separation authority approved your administrative separation with an OTH discharge.  You were discharged on 21 January 2005 with an OTH discharge.
 
The Board carefully weighed all potentially mitigating factors, such as your desire to upgrade your discharge and to change the narrative reason to “medical conditions.” The Board considered your assertions that during an altercation with    , you were under medical care and restrictions due to an uncontrollable seizure condition; that your OTH discharge was wrong while under medical care and unable to defend yourself without violating medical orders; and that witness statements concerning the incident were on file.   The Board also considered your contention that statements were submitted on your behalf.  The Board concluded these factors and assertions were not sufficient to warrant a change to your discharge given your misconduct, which resulted in five NJPs and a SCM conviction.  The Board noted that you waived your procedural rights in connection with your administrative separation.  By doing so, you gave up your first, and best, opportunity to advocate for retention or a more favorable characterization of service. 

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,