DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No. 4679-19 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 case on its merits. A three-member panel of the Board for Correction of Naval Records, sitting in executive session, considered your application on 26 September 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 thereof, relevant portions of your naval record and applicable statutes, regulations and policies. A review of your record shows that you entered active duty with the Marine Corps in June 1974. Non-judicial punishment was imposed on you for unauthorized absence on 22 November 1974. On 18 June 1976, you were convicted by a summary court-martial for unauthorized absence. You were convicted by a special court-martial on 12 November 1976 for another unauthorized absence before you commenced another period of unauthorized absence on 6 January 1977. After you were returned to military custody on 20 June 1977, you submitted a request to be discharged for the good of the service in lieu of trial by court-martial. Your request was approved resulting in your discharge on 26 August 1977 with an Other than Honorable characterization of service. On 10 July 1991, the Naval Discharge Review Board denied your request for an upgrade to your characterization of service. The Board carefully considered your arguments that you deserve a change to your narrative reason for separation to disability. You argue that you injured your knee while on active duty and have undergone four knee surgeries since your discharge from the Marine Corps. Unfortunately, the Board disagreed with your rationale for relief. First, the Board determined you were properly discharged pursuant to your request in lieu of trial by court-martial. The evidence in your record supports a finding that you committed misconduct that was pending adjudication by a court-martial when you submitted your request. Based on the severity of your extended unauthorized absence, the Board felt the Marine Corps decision to accept your request to be discharged for the good of the service. Second, since you were discharged for misconduct, the Board also determined that you were ineligible for disability processing or disability benefits since disability regulations dictated that misconduct processing superseded disability processing. So even if there was evidence to support a finding that your knee condition was unfitting, the Board concluded you were properly discharged for misconduct. Third, the Board finally concluded that insufficient mitigation evidence exists in your case to warrant relief under an injustice findings. Even though the Board was sympathetic to your knee condition and need to have repeated surgeries, they found that your multiple incidents of unauthorized absences, documented by non-judicial punishment and courts-martial convictions, substantially offset the mitigation created by your knee condition and treatment history. In their opinion, you were already provided substantial relief when the Marine Corps commuted your Bad Conduct Discharge from your special court-martial conviction to suspended confinement. Subsequently, you were allowed to be administratively separated when you, more likely than not, would have received another punitive discharge at a court-martial for your last period of unauthorized absence. These factors convinced the Board that no injustice exists in your case to merit relief. Accordingly, the Board found insufficient evidence of error or injustice to warrant a change to your record. 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 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, 10/5/2019