Docket No: 5707-19 
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 application on its merits.  A three-member panel of the Board, sitting in executive session, considered your application on 11 June 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 originally enlisted in the Marine Corps on 21 September 2004.  On 4 April 2014, you went to a Special Court-Martial (SPCM) on four charges related to your interaction and relationship with a certain female Marine.  You were found guilty of one of the four charges, a violation of Uniform Code of Military Justice Article 128, assault consummated by a battery.  As punishment, you were reduced in rank to Corporal (E-4).  On 22 April 2014, you received a 
“page 11” counseling warning (Page 11) for your SPCM conviction, and a second Page 11 notifying you that you are eligible, but not recommended for promotion to Sergeant (E-5) for twelve months due to your SPCM conviction. 

On 25 June 2014, your command initiated administrative discharge proceedings by reason of misconduct due to the commission of a serious offense.  On 26 June 2014, you consulted with counsel and subsequently elected your right to request a hearing before an administrative separation board (Adsep Board). 

On 18 December 2014, an Adsep Board convened in your case and you were represented by counsel.  Following the presentation of evidence and witness testimony, the Adsep Board members determined by a preponderance of the evidence that you had committed misconduct as charged.  Subsequent to their misconduct finding, the Adsep Board members recommended that you be separated from the Marine Corps with a General (Under Honorable Conditions) (GEN) characterization of service. 

On 16 January 2014, your detailed defense counsel submitted a letter of deficiencies (LoD) alleging procedural and substantive deficiencies.  On 11 February 2015, your commanding officer (CO), , recommended to the Commanding General,  (CG) that you be separated with a GEN discharge.  On 26 February 2015, your CO’s immediate superior in the chain of command (ISIC), , also recommended to the CG that you be separated with a GEN discharge.  On 27 February 2015, the Staff Judge Advocate (SJA) for 2D MAW reviewed your case and determined that your Adsep Board proceedings were sufficient in law and fact.  The SJA also recommended a GEN discharge to the CG.  On 13 March 2015, the CG approved the chain of command recommendations and directed your GEN discharge for misconduct due to the commission of a serious offense.  On 24 March 2015, you were issued a Page 11 informing you that you would be assigned an RE-4 reentry code.  Ultimately, on 26 March 2015, you were discharged from the Marine Corps with a GEN characterization of service and assigned an RE-04 reentry code.  The separation code of “GKQ1” on your DD Form 214 corresponds to “commission of a serious offense –all other (board).” 

The Board carefully weighed all potentially mitigating factors, including your contentions that included, but were not limited to, those as outlined in your letter accompanying your petition and also contained within your detailed defense counsel’s Adsep Board LoD, namely:  (a) defective 
notification procedure, (b) defective recommendation; (c) failure to recognize rehabilitation before initiation of proceedings, (d) failure to conduct a legal review, (e) improper narrative reason for discharge, (f) an entitlement to separation pay, (g) improper argument by Recorder, 
(h) being prohibited from presenting relevant evidence, and (i) the substantive effect of wrongly identifying the separation authority.  However, the Board found that your contentions and mitigating factors were not sufficient to warrant setting aside your discharge, upgrading your discharge, receiving separation pay, or granting any other relief in your case. 

The Board determined that your proffered arguments were entirely without merit and fundamentally flawed.  First, you attempt to state that because of an alleged glaring procedural deficiency in incorrectly identifying the separation authority in your Adsep Board notification paperwork, that somehow the outcome may have been different.  Regardless of what may have been stated on your Adsep notification, that in and of itself did not prejudice you in any way.  As you pointed out, per the MARCORSEPMAN, when the sole basis for separation is a serious offense that resulted in a conviction by a general or special court-martial that did not impose a punitive discharge, and an other than honorable discharge is warranted, the Deputy Commandant (Manpower and Reserve Affairs) (DC, M&RA) is generally the separation authority.  However, that paragraph specifically refers to MARCORSEPMAN paragraph 1004.4.c for additional guidance.  MARCORSEPMAN paragraph 1004.4.c states: 


When separation is based solely upon a serious offense or serious offenses…which resulted in a conviction by a special or general court-martial that did not adjudge a punitive discharge, AND the general court-martial convening authority (GCMCA) recommends a characterization of service as under other than honorable conditions…separation and characterization must be approved by the Deputy Commandant (M&RA) on a case-by-case basis.  (emphasis added) 
Such safeguards are put in place to provide a service member with additional procedural protections and a higher level of review in the event a command was seeking an other than honorable discharge (OTH) in non-punitive discharge SPCM cases.  However, that is not the case here.  Your CO, ISIC, and GCMCA all recommended that you receive a GEN characterization, not an OTH.  Thus, DC, M&RA’s review was not required in your case.  Even assuming arguendo that DC, M&RA’s review was somehow required, the Board concluded it would have been highly unlikely that the DC, M&RA, would have ignored the entire chain of 
command’s GEN discharge recommendation and set aside your Adsep Board and/or granted you 
relief. 

Second, you argue that there was a failure to conduct a legal review, and by inference, that such legal review would have substantiated your procedural and substantive deficiencies.  However, contrary to your contention, the SJA for 2D MAW did indeed conduct a legal review on 27 February 2015 and concluded that your Adsep Board proceedings were legally and factually sufficient.  Had any discrepancies existed as your counsel alleged in his LoD, the SJA would have highlighted them during his review and recommended the appropriate remedial relief to the separation authority. 

Third, you contend that you are entitled to full separation pay because you were separated involuntarily and due to multiple errors.  Unfortunately, Marines separated by reason of misconduct are not entitled to separation pay.  As stated above, the SJA found your case to be legally and factually sufficient and without procedural/substantive errors.  Thus, the Board concluded that your Adsep Board was not deficient and was in compliance with all Department of the Navy directives and policy. 

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.  Additionally, the Board determined that, in fairness to those Sailors who serve honorably and without incident, Sailors 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 a GEN discharge is appropriate.  The Board determined that significant negative aspects of your conduct or performance far outweighed any positive aspects of your overall military record and that you merit a GEN characterization of service and no higher. 


The Board also noted that, although one’s service is generally characterized at the time of discharge based on performance and conduct throughout the entire enlistment, the conduct or performance of duty reflected by a single incident of misconduct may provide the underlying basis for discharge characterization.  Moreover, characterization under OTH conditions is generally warranted for misconduct, and is appropriate when the basis for separation is the commission of an act that constitutes a significant departure from the conduct expected of a Marine.  Accordingly, the Board determined that there was no probable material error or injustice in your discharge, and the Board found that your misconduct warranted your receipt of a GEN discharge. 
Further, you contend that block 26 of your DD Form 214 is incorrect.  Block 26 contains the notation “GKQ1,” and is the separation code that means “commission of a serious offense – all other (board).”  A serious offense is an offense that would warrant a punitive discharge, per the Manual for Courts-Martial, “Maximum Punishment Chart,” for the same or closely related offense.  At your SPCM, you were convicted of assault consummated by a battery. This crime does carry a maximum punishment of a punitive discharge and is by definition a serious offense. 

Lastly, regarding your request to change the plain language “English Description” narrative reason for separation as listed on block 28 of your DD Form 214, the Board does not address requests to make minor clerical corrections or administrative errors to records and/or documents unless you have been separated from the service 62 years or longer.  Navy Personnel Command has cognizance over requests to change records less than 62 years old.  You may send your request to address this singular issue with supporting evidence and references to the following address:  Commander, Navy Personnel Command (Code PERS-312), 5720 Integrity Drive, Millington, TN 38055-3120. 

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.  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. 

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