DEPARTMENT OF THE NAVY BOARD FOR CORRECTION OF NAVAL RECORDS 701 S. COURTHOUSE ROAD, SUITE 1001 ARLINGTON, VA 22204-2490 Docket No: 0474-19 Dear This is in reference to your reconsideration request received on 28 December 2018. You previously petitioned the Board and were advised in our decision letter that your application had been denied. Your request for reconsideration was reviewed in accordance with Board for Correction of Naval Records procedures that conform to Lipsman v. Secretary of the Army, 335 F. Supp. 2d 48 (D.D.C. 2004). After careful and conscientious reconsideration of the entire record, the Board found the evidence submitted was insufficient to establish the existence of probable material error or injustice. Consequently, your application has been denied. Because your application was submitted with a new statement and evidence that was not previously considered, the Board found it in the interest of justice to review your most recent application. In this regard, your request was carefully examined by a three-member panel of the Board for Correction of Naval Records, sitting in executive session, on 11 April 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. Regarding your request for a personal appearance, the Board determined a personal appearance with or without counsel will not materially add to their understanding of the issues involved. Therefore, the Board determined a personal appearance was not necessary and considered your case based on the evidence of record. You enlisted in the Marine Corps Reserves (USMCR) on May 2003, served on active duty from October 2003 to April 2004, and were discharged from the USMCR on July 2005 with an honorable characterization of service. On May 2008, you were commissioned as a Second Lieutenant in the Marine Corps. While attending The Basic School, on November 2008, you were involved in a physical altercation with your girlfriend in which both of you struck one another. Local authorities responded but a formal report was not filed. On November 2008, you purchased an automatic weapon at a pawn shop which was the subject of a Bureau of Alcohol, Tobacco, and Firearms (ATF)/Marine Corps Criminal Investigative Division (CID) joint investigation because the weapon was previously reported stolen from a private collection and because its possessor must have a Class III firearms license due to the rifle’s automatic capability. On January 2009, you were counseled regarding the purchase of the weapon. On April 2009, you were notified of pending administrative separation action by reason of misconduct due to a pattern of discreditable involvement with civilian authorities and failure to complete the Basic Officers’ Course (BOC). You acknowledged receipt of the separation notification and indicated you would submit a resignation and rebuttal. After ten days with no response, your Commanding Officer (CO) recommended a general, under honorable conditions discharge by reason of misconduct. Each level of endorser concurred with the CO’s recommendation. On July 2009, your discharge was approved. On August 2009, you were discharged with a general, under honorable conditions character of service by reason of secretarial authority. The previous Board considered your request for an upgrade to your characterization of service. Your current application requests reconsideration and again seeks an upgrade to your discharge characterization based on error and injustice. You contend, in part, that since the misconduct was never adjudicated through nonjudicial punishment, at court-martial, or by counseling, and since you were never “formally” reprimanded, a general, under honorable conditions character of service is not required and your request to upgrade your characterization of service to an honorable warrants relief. Specifically, you contend that your girlfriend was not the first to notify the command regarding the off-base incident. You stated you reported the incident to the duty officer in immediately upon returning to base at 0700. You further contend that you were “up front in reporting it immediately” which you were later told by your company commander was the reason you were retained and not reprimanded. Additionally, you contend you notified your staff platoon commander immediately, and he encouraged you to “get some rest and enjoy liberty”. Additionally, you provided information regarding the purchase of the firearm and your interactions with the ATF/CID agents. You contend the agents did not suspect foul play and were not at your command to press charges against you. You further contend you had no idea the weapon you purchased from the pawn shop was fully automatic. After your time with the agents, you contend no misconduct was alleged or charged by the ATF/CID agents. Further, you stated you understand that your “discharge type can be given without misconduct adjudicated in civilian or military court” but contend there is no requirement that a general, under honorable conditions characterization of service be given in this type of case. You further contend your command was “slightly prejudicial against you in the company and battalion level boards”. You continue to contend that there was clearly no misconduct involved with the firearm purchase and that if the altercation between yourself and your girlfriend “could be considered misconduct”, no police report was filed and no proof exists that the police arrived at the scene, therefore all that exists is a “non-adjudicated assumption that there was misconduct”. You further contend that “had someone out in the fleet encountered the same infraction, they would have been assigned perhaps a page 11 or NJP. However, my command issued no such formal reprimand.” You also reiterate the recommendation of the five field grade officers from the Naval Discharge Review Board (NDRB) to upgrade your discharge to an honorable characterization of service. You point out that all of these men had been in command positions and “have no doubt issued NJP, page 11, etc. to their sailors and Marines.” Since they “understand these situations” and were able to speak directly to you and ask clarifying questions, “they better understood the relevant details”. You contend that “for their recommendation to be refused by someone who wasn’t part of the review board” is not equitable. Lastly, you contend you have taken “the proper steps to improve” yourself since exiting the military. In support of this contention, you provided a copy of your completion certificate for an anger management course and noted you have remained active in your church and men’s Bible study and been continuously mentored by men with more life experience than yourself. You also provided supporting documentation reflecting your post-service accomplishments as a pilot, volunteer, and diesel mechanic. The Board carefully weighed all potentially mitigating factors, each of the above contentions, your evidence of post-service achievements, and your stated desire to upgrade your discharge so you can apply for a commission in the U.S. Air Force Reserve. The Board’s determination that your request does not warrant relief remains unchanged. The Board’s prior decision did not solely focus on the misconduct which you have specifically readdressed but relied upon your overall performance and conduct since you were commissioned. Specifically, the Board relied upon your CO’s comments in his recommendation of April 2009, in part, that you “failed to exhibit the necessary leadership qualities, specifically the character expected of a Marine officer” and “such fundamental deficiencies are evidence of a basic inability to conform to accepted standards of behavior and cannot be remedied by subsequent attempts at the program of instruction.” Additionally, the Board relied upon his further comment that he personally met with you and found that you had “deliberately failed to prepare for successful completion of the Basic Officer’s Course (BOC) by refusing to establish any meaningful interpersonal relationships and constantly placing himself in questionable predicaments.” The CO went on to say you “offered neither an excuse nor an explanation for his apathy and epitomized the immature attitude that cannot be tolerated in a Marine Corps officer.” Therefore, the Board determined that your conduct once commissioned, which forms the primary basis for determining the character of service, reflected a significant departure from the conduct expected of a Marine Corps Officer, and your general under honorable conditions characterization of service was appropriate. In regards to your emphasis on the five field grade officers from the NDRB, the Board’s concurrence with the NRDB’s Secretarial Review Authority’s (SRA) decision remains. Just as you highlight the experience of the NDRB officers and their ability to form an opinion based on your personal appearance, the Board notes your record shows your CO personally met with you and determined you had deliberately failed to prepare, had demonstrated little initiative for self- improvement, and had failed to exhibit the necessary leadership qualities expected of a Marine Officer. The Board also again noted the record states that prior to being dropped from BOC you were counseled during training and provided guidance, but at the time you were dropped from the company, you were ranked 47 out of 48 amongst the student officers assigned to the platoon. Further, the Board noted the chain of command’s statement that your “gross indifference to completing the BOC and questionable judgment, coupled with repeated involvement with law enforcement personnel, reflect his inability to conform to accepted standards of behavior.” In conclusion, the Board determined there was insufficient evidence to demonstrate error or injustice in your general, under honorable conditions characterization of service. Additionally, the Board, having fully reviewed and considered your post-service conduct, desire to serve as a pilot, volunteer involvement, and character letters, determined your request did not warrant clemency in the form of an upgrade to your characterization of service. It is regretted that the circumstances of your current reconsideration petition are such that favorable action cannot be taken at this time. You are entitled to have the Board reconsider its decision upon the submission of new and material evidence. New evidence is evidence not previously considered by the Board. In the absence of sufficient new and material evidence for reconsideration, the decision of the Board is final, and your only recourse would be to seek relief, at no cost to the Board, from a court of appropriate jurisdiction. 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,