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

Docket No: 4774-19 
Ref: Signature date

Dear	:

This letter 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 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 October 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, as well as applicable statutes, regulations, and policies.

You enlisted in the Marine Corps and began a period of active duty on 6 May 1974.  On 10 December 1974, you received nonjudicial punishment (NJP) for disrespectful language toward a non-commissioned officer (NCO). On 4 January 1975, you received a second NJP for unauthorized absence (UA). On 15 February 1975, you received a third NJP for shoving a NCO into a wall locker and using disrespectful language. On 28 November 1975, you were convicted by special court-martial (SPCM) for violating Article 91 (disrespectful language toward a NCO), and two specifications of Article 128 (assaulting a NCO by hitting, biting and kicking, and assaulting Staff NCO by kicking him in the head) of the Uniform Code of Military Justice (UCMJ). You were sentenced to forfeiture of pay, confinement with hard labor, and reduction in rank to E-1. On 10 March 1976, you began a period of UA that continued until you were apprehended by the Federal Bureau of Investigations (FBI) on 23 June 1976. On 12 July 1976, while pending trial before a second SPCM, you admitted your guilt to the foregoing UA and requested an undesirable discharge for the good of the service (GOS) and separation in lieu of trial by court-martial (SILT). On 10 August 1976, pursuant to your request, you were discharged with an other than honorable (OTH) characterization of service.

You request the Board upgrade your discharge. You assert that while home on leave, the FBI detained you because they were looking for your brother and believed that you knew his location, and threatened you with UA charges if your brother did not turn himself in. You stated that you were held against your will and unable to communicate with the Marine Corps. Lastly, you contend that you “never had a problem until this happened.” In support of your petition, you attached character letters dated 1 March 2019 from a police lieutenant, and 27 February 2019 from your Pastor. The Board carefully weighed all potentially mitigating factors in your case, including your record of service and contentions. However, the Board concluded that these factors were insufficient to warrant a change to your discharge given your misconduct that resulted in three NJPs, a SPCM, and your request to be discharged with an undesirable discharge to escape trial by court-martial. With respect to your contention of being held against your will and threatened by the FBI, the Board noted that you provided no evidence to support your contention. Moreover, as part of your GOS/SILT request, you admitted your guilt for your lengthy UA. Absent of such evidence, the Board relied upon the presumption of regularity and presumed that the officials acted in accordance with governing law/policy and in good faith. With respect to your contention that you had no disciplinary problems prior to being apprehended by the FBI, the Board noted that you had three NJPs and a SPCM before your apprehension.

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,